Awdhesh Kumar Singh and Others vs State of Bihar and Others

S.K. Katriar, J.—This application under the inherent powers of the Court has been preferred with the prayer to quash the impugned order dated 16-8-93, passed by the learned Sub-divisional Magistrate, Sadar Darbhanga, in M.R. case No. 882/93 Rajendra Yadav v. Awdhesh Singh, whereby proceedings u/s 144 of the Code of Criminal Procedure (hereinafter referred to as "the Code"), have been converted into one u/s 145 of the Code.

While assailing the validity of the impugned order, learned Counsel for the petitioner submitted that by order dated 16-8-93, the learned S.D.M., Sadar Darbhanga, was pleased to initiate the proceedings u/s 144 of the Code against both the parties which have been registered as M.R. case No. 882/93. Thereafter, the proceedings were initiated between the parties u/s 48-E of the Bihar Tenancy Act, 1885 (hereinafter referred to as "the Act"). This is evident from the notices issued to the parties, photo copies of which are Annexure-2 series to this application-Relevant provision of Section 48-E of the Act reads as follows:

(13) Save as expressly provided in this Act, no Civil or Criminal Court shall have any jurisdiction over the subject-matter of a dispute after a proceeding is initiated under Sub-section (1) by the Collector:

Provided that nothing in this sub-section shall be deemed to affect the power of a Criminal Court to take such action as may be necessary for preventing breach of the peace pending the final disposal of the proceedings by the Collector.

Learned Counsel for the petitioners submits that it has been held by this Court that in the event of pendency of the proceedings u/s 48-E of the Act, proceedings u/s 145 of the Code cannot be initiated. He relies on the reported judgments of this Court reported in 1977 BLJR 260, Jai Prakash Rai v. Bans Lal, as well as the judgment reported in 1988 BLJ 969, Harendra Singh v. Rajendra Singh, In his submission, therefore, the learned Magistrate had no jurisdiction whatsoever to initiate the impugned proceedings u/s 145 of the Code in view of the pendency of the proceedings u/s 48-E of the Act between the parties,

Learned Counsel for the opposite parties submits that the aforesaid two reported judgments do not take into account the provisions of Section 146(1) of the Code. He further submits that the petitioners have not placed on record the latest position about the pendency of the proceedings u/s 48-B of the Act. In case the same have come to an end, then proceedings u/s 145 of the Code can surely be initiated even in the face of the ratio of the aforesaid reported two judgments.

Having considered the rival submissions, I am convinced that this application has to be allowed. In the case of Jai Prakash Rai v. Bans Lal (supra), this Court while comparing and contrasting the provisions of Section 48-E of the Act with those of Section 145 of the Code, came to the conclusion that the two are a good deal in common and, therefore, in no uncertain terms excluded the applicability of the latter while proceedings u/s 48-E of the Act inter-parties with respect to the same plot of land are pending Paragraph-9 of the judgment is relevant and is set out hereinbelow for the facility of quick reference:

Under the aforesaid circumstances, I am of the view that during the pendency of the proceedings u/s 48-E of the Act, a criminal Court can take only such action, as may be necessary, for preventing breach of peace, till the proceedings u/s 48-E are finally decided and this will include a proceedings under Sections 144. 107 or exercise of any other power vested in the Criminal Court for preventing breach of the peace. In my opinion, the learned Sub-divisional Magistrate knowing full well that a proceeding u/s 48-E of the Act was pending, should not have initiated a proceeding u/s 145 of the Code for the purpose of deciding the identical dispute which was pending before a special and exclusive forum under the provisions of the Act whose decision is final and cannot be questioned even in a Civil Court.

4.1. The same view was reiterated by this Court in its judgment in the case of Harendra Singh v. Rajendra Singh (supra) paragraph-2 of which is set out hereinbelow for the facility of quick reference:

It is well settled that the claims of the bataidars have to be adjudicated in accordance with the procedures prescribed u/s 48-E onwards of the Bihar Tenancy Act (B.T. Act) and primarily the right accrues to a bataidar when he is threatened with eviction at the hands of the superior raiyats because the bataidar cannot be evicted except an the grounds which the law provides for such eviction. Once a proceeding is initiated u/s 48-E of B.T. Act, civil suit and proceedings u/s 145 of the Code are barred. If there is no proceeding u/s 48-E of the B.T. Act, a suit does become maintainable or a proceeding u/s 145 of the Code can be initiated to prevent breach of peace which on the initiation of a proceeding u/s 48-E of the B.T. Act will stand effaced and cannot be continued.

Coming to the arguments of the opposite parties, the reliance placed by him on Section 146(1) of the Code is wholly misplaced, inasmuch as the same is applicable only in cases of proceedings u/s 145 of the Code. When the substratum is gone, where is the question of the super structure. Section 146 of the Code has no independent existence and is an appendage to Section 145 of the Code. The opposite parties have not placed on record any counter-affidavit giving the latest position of the proceedings u/s 148A of the Code. He is, therefore, not entitled to raise the contention without laying the factual foundation before this Court.

In the result, this application is allowed, the impugned order dated 10-9-93, passed by the learned Sub-divisional Magistrate, Darbhanga Sadar, in M.R. case No. 882/93 is hereby quashed.