SUNDARI DEVI WIFE OF SIDHESHWAR PRASAD SINGH Vs. DUDHESHWAR SINGH SON OF LATE KEDAR SINGH, SHATRUGHAN SINGH SON OF DUDHESHWAR SINGH AND THE STATE OF BIHAR

JUDGEMENT

(1.) THIS application is directed against the order dated 4.12.2001 passed by Sub -divisional Judicial Magistrate, Sadar Gaya in Misc. Case No. 1315 of 2001 by which a proceeding under Section 144 Cr.P.C has been converted into one under Section 145 Cr.P.C. Initially a petition was given on behalf of opposite party No. 1 and 2 concerning apprehension of breach of peace for the land which was subject matter of Second Appeal pending before the High Court without mentioning number of second appeal basing which a proceeding under Section 144 Cr.P.C. was initiated.

(2.) Parties were asked to show cause. They filed their respective show cause giving detail of the disputed land, admitting that ownership and possession was challenged in a T. S. No. 22/76 in which ownership as well as the possession was claimed by both the parties but decided in favour of petitioners that was confirmed in appeal (T.A. No. 44/98) also but even then opposite party No. 2 was apprehending breach of peace, proceeding was converted into one under Section 145 Cr.P.C.

(3.) NOW the only question remains to decide by this Court is whether the criminal Court can pass any order under Section 145 Cr.P.C, when the matter is decided by competent civil court in its trial and in appeal and thereafter pending before the High Court in S.A. No. 33/2000. If any order is passed under Section 145 Cr.P.C. that is subject to decision of competent Court that is Civil Court in connection with possession over land. In this case concurrently two Courts - trial as well as appellate court have decided right, title and possession over the disputed land of the parties, decree of which is valid and effective till set aside, reverse or deviated by second appellate court but that is not done. At present both the decrees are fully effective. Though there is no need to further make reference of any decision of the High Court or Apex Court that even the proceeding already initiated shall be dropped whenever it comes before the Court (Magistrate) where the matter is pending.