Smt. Kalindi Devi vs The State of Bihar and Others

S.C. Mukherji, J.—Having beard learned Counsel for the petitioner, this application is being disposed of finally at the admission stage itself.

It appears that in the year 1979, a proceeding u/s 144, Cr. PC was drawn up respecting certain land as detailed in Annexure-1 which was subsequently converted into one u/s 145, Cr. PC Pursuant to that, notice was issued to the parties to show cause. While the matter was pending before the Magistrate and the parties who were to adduce evidence in support of their respective claim, a suit was filed in the year 1984 in the Court of Subordinate Judge, Patna and accordingly a prayer was made by the petitioner before the Magistrate for dropping it which he declined to do. Thereafter, in the year 1991 a revision application was filed against that order, which was also decided against her.

The subject-matter of dispute appears to be a piece of land which according to one of the parties i.e. the opposite party, was allotted to them by the Housing Board. I am, however, not concerned at this stage about the legality or otherwise of the said allotment. The question is whether the proceeding is fit to be dropped, in view of a decision of this Court relied upon by the petitioner reported in 1991 (1) BLJR 35 (Ram Chandra Rai and Ors. v. State of Bihar and Ors.). Learned Counsel for the petitioner submits that in the said decision it has been observed that if there is no substantial progress in a proceeding u/s 145, Cr. PC even after a period of seven years, it should be deemed to have been dropped and, therefore, the learned Magistrate should have dropped it on this ground or on account of filing of a suit.

In this decision, reliance has also been placed on an earlier decision of this Court reported in 1986 BBCJ 678 : 1987 PUR (NOC) II (Kamleshwari Rai and Ors. v. Keshav Raj and Ors.) wherein it has been observed that:

Such a case which remained pending for seventeen years, it may be termed as stale and in this view of the matter, interference is only warranted if there be such compelling and extraordinary situation. It is never permissible to allow such proceedings to prolong mechanically without any valid reason and if that is allowed, certainly complications will arise leading to the denial of right and possession of a true possessor and owner.

The decisions show that where there is no apprehension of breach or any dispute likely to cause breach of peace concerning the land, and it is pending beyond the aforesaid period, such proceeding normally should not be allowed to continue. In this case, the position is altogether a different one. The initiation of the proceeding, objecting to continuing the same on various points, different orders of the Magistrate passed from time to time, filing of a suit, agitating the matter before a revisional court and this Court, if considered together will obviously show that there is apprehension of breach of peace respecting the land between the parties. It is true that there has been delay in disposing the proceeding but that is also due to various factors. In the circumstances, it cannot be said that there was no apprehension of breach of peace as has been sought to be made out.

The second submission has been that when a suit has been filed, the Magistrate should not proceed any further as in the suit itself the dispute between the parties will be finally decided.

It goes without saying that any decision in a proceeding u/s 145, Cr. PC is subject to the decision of a suit by a competent jurisdiction. In a proceeding u/s 145, Cr. PC, the Magistrate has only to see as to who was in possession over the property two months before the initiation of the proceeding and, therefore, the decision in the suit will obviously prevail upon the decision of the Magistrate, In the circumstances, mere filing of a suit subsequent to the initiation of proceeding cannot be a ground to drop the proceeding. This is all the more necessary because if a direction of this nature as has been sought is given, it may give rise to further apprehension of breach of peace which ordinarily should net be raised.

The application is, therefore, dismissed with a direction to the Magistrate to see that all efforts are made to dispose of the proceeding by December, 1991. If any of the parties does not co-operate with the Magistrate, it shall be open to him to proceed with it, without granting any adjournment unless there are compelling circumstances to do so.