IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.42980 of 2008 1. SURYA NARAYAN SAHU @ SURYA NARAYAN SAH, SON OF LATE MUNNI LAL SAHU 2. KAMESHWAR SAHU, SON OF SHRI SURYA NARAYAN SAHU BOTH RESIDENT OF VILLAGE BISHANPUR-SHIVRAM, P.S. BALUA BAZAR, DISTRICT SUPAUL. ----- PETITIONERS Versus 1. THE STATE OF BIHAR. 2. MOSMAT YASHODA DEVI, WIFE OF LATE SHYAM DEO SAHU, RESIDENT OF VILLAGE BISHANPUR-SHIVRAM, P.S. BALUA BAZAR, DISTRICT SUPAUL. ----- OPPOSITE PARTIES ----------- 2 19.3.2010 This application has been filed against the order dated 29.6.2007, passed by the S.D.M., Birpur (Supaul) in Misc. Case No. 23 of 2006 and the order dated 7.5.2008, passed by the Additional Sessions Judge (Fast Track Court No. IV), Supaul in Cr. Revision No. 183 of 2007. The order dated 29.6.2007 indicates that this petitioner had stopped appearing in Court and doing pairvi in this case and as such the order was passed ex-parte. It is also apparent that the S.D.M., Birpur (Supaul) had not received any police report to indicate that there was an eminent necessity of initiating a proceeding under Section 146(1) (2) of the Code of Criminal Procedure. The case of the opposite party is that there was a partition between the two brothers. After the partition her husband died and her brother-in-law had dispossessed her of certain lands belonging to the share of her husband and was not permitting her to carry out agricultural work in the lands belonging to her husband. After the order dated 29.6.2007 it appears that the report was submitted by the survey knowing 2 officer which is contained in annexure-2 which gives the descriptions of the land in question. The said inspection also indicates that some of the lands were left for the second party to grow crops whereas some of the land was in possession of the first party. I find that the order dated 29.6.2007 suffers from inherent defect that it does not specify that there is imminent danger of breach of peace which is essential ingredient to initiate a proceeding under Section 146(1) of the Code of Criminal Procedure. It is evident that the Subdivisional Magistrate, Birpur had not called for the report from the Officer Incharge regarding the threat of breach of peace. The order of the revisional Court on the other hand discusses the case of the parties and thereafter comes to a conclusion that there is an imminent danger of breach of peace although no such finding has been recorded by the S.D.M., Birpur (Supaul). This case has been pending in this Court since 2007 and one hopes that the matter may have been disposed by the S.D.M., Birpur (Supaul) by now. However, if it is not disposed, then notice should be issued to the opposite party no. 2 and steps should be taken for disposal of the main proceeding under Section 145 of the Code of Criminal Procedure as well as the 3 present proceeding. The Court should also consider whether it is essential to continue with the order of attachment in view of the fact that more than two years have passed since the order of attachment was issued on 29.6.2007 and pass final orders regarding this aspect within a period of three months on receipt/production of a copy of this order after hearing the parties. This application is disposed of with the aforesaid directions. Sanjay (Sheema Ali Khan, J.)