Makhan Pandit and Others vs The State of Bihar and Others

Amaresh Kumar Lal, J.—The second party Petitioners have preferred this revision petition against the order dated 30.5.2008 passed by the learned Executive Magistrate, Naugachia in Case No. 189 of 2008 by which proceeding u/s 144 Code of Criminal Procedure has been converted into proceeding u/s 145 Code of Criminal Procedure and both the parties have been directed to file their written statement in support of their case. The O.P. Nos. 3 to 7 have appeared through Vakalatnama but none appeared on their behalf.

The main contention of the Learned Counsel for the Petitioners is that it is admitted position that a Title Suit No. 65 of 2006 is pending in the court of competent jurisdiction for the land in dispute. He has also submitted that the learned Magistrate has dropped the proceeding u/s 144 Code of Criminal Procedure vide his order dated 14.3.2008 holding that the dispute between both the parties is of civil in nature and that can be solved in the competent Civil Court itself. It is settled principle of law that for the same cause of action two proceedings cannot be allowed to continue in both the court civil as well as criminal.

Learned Counsel for the State could not controvert the contention of the Petitioner while opposing the prayer of the Petitioner.

After hearing Learned Counsel for the Petitioner and Learned Counsel for the State it appears that the contention of the Learned Counsel for the Petitioners is correct. It is admitted position that Title Suit No. 65 of 2006 for the same land is pending in the Court of Sub-Judge 1st, Naugachia a competent court to deal with the situation. The proceeding u/s 145 Code of Criminal Procedure is an abuse of the process of the court. Therefore, the impugned order is set aside. In the result this application is allowed. I.A. No. 2652/2009 also stands disposed of.