AMRENDRA NARAYAN CHAUDHARY Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard Mr. Vikash Kumar Sharma, learned counsel appearing for the petitioners, Mr. Jharkhandi Upadhyay, learned APP appearing for the State and Mr. Mritunjay Kumar, learned counsel appearing for the O.P. Nos. 2 and 3.

(2.) The instant petition has been filed under Sec. 482 of the Code of Criminal Procedure (in short 'Cr.P.C.') against the order dtd. 8/5/2015 passed by the 3rd Additional Sessions Judge, Purnea in connection with Criminal Revision No. 416 of 2005 in which the order dtd. 7/10/2005 passed under Sec. 145 of the Cr.P.C. was challenged and the same was set aside and the matter was remanded back to the learned SDM, Purnea with a direction to hear the Revisionist/O.P.s 2 and 3 sets and pass an appropriate order after calling the report from DCLR regarding pendency of proceeding under Sec. 48E of the Bihar Tenancy Act (in short 'B.T. Act') in connection with the disputed land.

(3.) The main grounds taken by the petitioners' counsel to assail the order impugned are that while allowing the revision the learned court of the 3rd Additional Sessions Judge, Purnea mainly took into account the provision of Sec. 48E(13) of B.T. Act and it was observed that as a proceeding under B.T. Act was pending with regard to the subject matter of dispute, so, in such a situation, the proceeding under Sec. 145 of the Cr.P.C. could not run parallel but admittedly, the proceeding under sec. 144 of Cr.P.C. which was later converted into Sec. 145 of the Cr.P.C. had been initiated before the initiation of the proceeding under B.T. Act and the O.P.s took their plea under the provision of Sec. 48E(13) of B.T. Act at very belated stage with malafide intention and in this regard, a proper conclusion was also made by the learned Executive Magistrate in the order dtd. 7/10/2005 as the O.P.s Md. Kamruddin and Md. Sahim Khan who are here O.P. 2nd set, did not take any attempt to file a petition under B.T. Act between the year 2000 and 2005 nor it was reported by the concerned Circle Officer regarding the status of the O.P. 2nd set as bataidar and it was observed by the learned Magistrate that the O.P. 2nd set filed their application with an intention only to frustrate the proceeding which was running under Sec. 145 of the Cr.P.C. between the petitioners and O.P. 3rd Set in which O.P. 2nd Set were not a party and further, as per O.P. 2nd set, the proceeding under B.T. Act was running in respect of 4.5 acres land only while the area of the entire land of subject matter of the proceeding under Sec. 145 of the Cr.P.C. was 16.79 acres and on account of the order impugned, the preventive proceeding initiated under Sec. 145 of the Cr.P.C. with regard to the major part of the land of subject matter has been frustrated while the said land was not a subject matter under B.T. Act. It is further submitted that as per the provision of sec. 48E(13) of B.T. Act, no civil or criminal court shall have any jurisdiction over the subject matter of a dispute after a proceeding is initiated under sub-sec. (1) of Sec. 48E of B.T. Act but in this matter, when the proceeding under sec. s 144 and 145 of the Cr.P.C. was initiated in respect of the land in question, no proceeding under Sec. 48E(1) of B.T. Act was pending with regard to the said land and further, as per the proviso of the said Sec. , a criminal court can take an action for preventing the breach of peace despite pending the proceeding before the Collector with regard to the same subject matter under the Sec. 48E(1) of B.T. Act. In support of these submissions, learned counsel has placed reliance upon the judgment of the Hon'ble Apex Court passed in the case of Bharat Prasad and Ors. vs. State of Bihar and Ors. reported in AIR 2009 SC 2827.