IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.35245 of 2007 1. Rakesh Ranjan Sahay, son of Chitranjan Sahay, resident of Village- Bhalua Bhagwan, Police Station- Dulhin Bazar, District- Patna. 2. Randhir Kumar, son of Raja Yadav, resident of Village- Sadaweh, Police Station- Dulhin Bazar, District- Patna. ------Petitioners. -Versus- 1. The State of Bihar. 2. Jay Govind Singh, son of Late Pradeep Narayan Singh, resident of Village- Bhalua Bhagwan, P.S. Dulhin Bazar, District- Patna. 3. Bhola Singh, son of Late Babu Lal Kahar, resident of Village- Bhalua Bhagwan, P.S. Dulhin Bazar, District- Patna. 4. Chitranjan Sahay, son of Late Balbhadra Sahay, resident of Village- Bhalua Bhagwan, Police Station- Dulhin Bazar, District- Patna.....................................Opposite Parties. ----------- For the petitioners: M/S. Ashok Kumar Sharma,B.P.Gupta and Swati Kumari, Advocates. For the State : Dr.Maya Nand Jha, A.P.P. For the O.P.No.2 : M/S. Amresh and M.P.Singh, Advocates. ---------- O R D E R Two of the members of the second party to a proceeding under Section 145 Cr. P. C. pending before the Sub-Divisional Magistrate, Paliganj, being Case No. 332(M) of 2003 have prayed for the quashing of the entire proceeding under Section 145 Cr. P. C. including the order dated 15.3.2007 passed therein by the Sub- Divisional Magistrate whereby the Anchal Adhikari, Dulhin Bazar, has been appointed as the Receiver of the lands in dispute with directions to him to get the crops planted thereupon harvested, auction sold and to deposit the sale proceeds in the Anchal Nazarat. The bone of contention appears to be 33 decimals and 72 decimals of lands appertaining to Khata No. 33, Plot Nos. 578 and 579 respectively of Village-Bhalua Bhagwan in the District of Patna. - 2 - The proceeding appears to have been initiated at the instance of Jai Govind Singh, impleaded herein as O.P. No.2, who laid claim over the lands in dispute on the basis of a Hukumnama. The second party, in pursuance of the notice appeared and filed a show cause inter alia stating that a Title Suit No.526 of 1986 in respect of the said lands had already been decided in his favour and that a First Appeal against the judgment and decree by the first party was pending before the High Court and that an earlier proceeding under Section 145 Cr. P. C. had been decided/dropped in his favour. On the aforesaid premise a prayer was made to drop the proceeding. However, by order dated 20.3.2004 the matter was finally decided in favour of the opposite party no.2 herein. The petitioners herein challenged the order before the Sessions Court vide Cr. Rev. No. 164 of 2004 but the said revision became infructuous as during the pendency of the revision final orders were passed in the proceeding under Section 145 Cr.P.C. Dissatisfied with the order dated 20.3.2004 deciding the proceeding under Section 145 Cr. P. C. in favour of opposite party no.2 herein, the petitioners challenged the said order before the Sessions Court vide Cr. Rev. No. 436 of 2004 which after hearing the parties was allowed by order dated 18.10. 2006 passed by Sri Ramshresth Roy, Additional Sessions Judge III, Patna, and the matter was remitted back to the Magistrate for reconsidering after recording evidence etc. On remand of the case before the Magistrate another petition was filed by the petitioners for dropping the proceeding on the identical grounds that the earlier proceeding under Section 145 Cr. P. - 3 - C. being Case No. 1122(M) of 1983 had already been decided in their favour and Title Suit No. 526 of 1986 in respect of the lands in dispute had also been decreed in their favour and that First Appeal No. 814 of 1994 was pending before the High Court. A second proceeding under Section 145 Cr. P. C. at the instance of the opposite party no.2 herein being Case No.378(M) of 1999 had been dropped on similar grounds. It appears that in the meantime, on 28.8.2007 opposite party no.2 herein filed a petition for the appointment of a Receiver in respect of the disputed plot and the learned Magistrate was pleased to allow the petition by the impugned order. From perusal of the order dated 18.10.2006 passed in Cr. Rev. No. 436 of 2004 it would appear that the learned 3rd Additional Sessions Judge had taken note of the fact that the Title Suit in respect of the disputed properties had been decreed in favour of the petitioners against which the Title Appeal preferred by the opposite party no.2 was pending and having perused the lower court records he remitted the case back to the learned Magistrate to permit the parties to adduce evidence and thereafter dispose of the matter after hearing the parties. The opposite party no.2 has appeared to contest this application though no show cause or counter affidavit has been filed on his behalf. Oral submissions were advanced to justify the impugned order. It was submitted that the petitioners herein had failed to produce any document before the learned Magistrate and that as there was an apprehension of breach of peace arising out of the dispute over the lands in question he had filed a petition under Section 146(1) Cr. P. C. for appointment of a Receiver. - 4 - This application to my mind has to be allowed on two distinct issues which are enumerated herein below. Firstly, admittedly, the First Appeal at the instance of the opposite party no.2 herein was pending before the High Court impugning the judgment and decree in favour of the petitioners herein passed in Title Suit No. 526 of 1986. Admittedly, also two earlier proceedings under Section 145 Cr. P. C. had been decided against the opposite party no.2 herein. Therefore, in view of the judgment and decree the Title Suit, possession over the lands in dispute stands in favour of the petitioners herein. If at all there was any apprehension of breach of peace in respect of the lands in dispute the opposite party no.2 herein was free to move the High Court in the First Appeal for seeking appropriate remedies. In Ramsumer Puri, Mahant Vs. The State of Uttar Pradesh and others reported in 1985 P.L.J.R. 14(S.C.) it has been held that “when a civil litigation is pending for the same property involving the question of possession and the parties are in a position to approach the civil court for interim orders, there is no justification in initiating a parallel proceeding under Section 145 Cr. P.C.” The Apex Court in the said case observed that “multiplicity of litigation is not in the interest of the parties nor public time should be wasted over meaningless litigations and in this view of the matter the Apex Court was pleased to quash the proceeding under Section 145 Cr. P.C.” Secondly, sub section (1) of Section 146 Cr. P. C. empowers the Magistrate in seisin of the proceedings under Section 145 Cr. P. C., on being satisfied that a case of emergency has arisen - 5 - and none of the parties was in possession of the disputed lands or whether he was unable to satisfy himself as to which the parties was in possession of the subject of dispute, to attach the subject of dispute until a competent court has determined the rights of the parties thereto. There is nothing in the impugned order to indicate what weighed with the Magistrate to be satisfied that there was an apprehension of breach of peace and an emergent situation had arisen. Before attaching the lands in dispute and appointing the Anchal Adhikari as a Receiver the learned Magistrate ought to have considered that the issue of possession had been answered in favour of the petitioners herein. In view of the facts and circumstances as also the discussions made above, there are sufficient grounds to interfere with the impugned order. Accordingly, the application is allowed and the entire criminal proceeding arising from the proceeding under Section 145 Cr. P. C. being Case No. 332(M) of 2003 is hereby quashed. (Abhijit Sinah,J) Patna High Court, Patna. Dated: the 3rd August, 2009. U.K./A.F.R.