1. Heard learned counsel for the petitioners, Additional Public Prosecutor for the State and learned counsel for the complainant. Perused supplementary affidavit filed on behalf of the petitioners.
2. This is an application under Section 482 of the Code of Criminal Procedure, seeking quashing of order dated 06.12.1999, learned Sub-Divisional Magistrate, Jehanabad in Case No. 1207 (M) of 1999 passing an order under Section 146 (i) of the Code of Criminal Procedure for attachment of the subject matter of the proceeding and order dated 09.12.2004 passed by 2nd Additional Session Judge, Jehanabad in Criminal Revision No. 40 of 2003 refusing to interfere in the above order.
3. Admittedly, at the instance of opposite party no. 2, one proceeding bearing Case no. 1207 (M) of 1999 under Section 145 of the Code of Criminal Procedure was initiated with respect of piece of land having an area 5 dhurs 5 dhurkies under Plot No. 3926, Khata No. 797, bounded as North lane, South Md. Hassan Imam, East Bibi Nausaba Khatoon, rest area of the plot in question in village Kako Bazar, P.S. Kako, District Jehanabad, where in petitioners figured as members of second party.
4. Earlier vide petition dated 29.10.1999, the opposite party no. 2 prayed for an order under Section 146 (i) of the Code of Criminal Procedure, whereupon rejoinder was filed by the petitioners and after hearing the parties report was called for from the local police.
5. Subsequently, on 04.12.1999 another petition with almost similar allegation was filed by the petitioners adding therein that yet no report is received and situation is emergent, the court below, without going through the contents of the petitions, which are almost similar to earlier petition, without any fresh material, passed impugned order.
6. Against order of the court below Criminal Revision No. 40 of 2003 was preferred before learned Sessions Judge, Jehanabad and it was finally dismissed on 09.12.2004 by 2nd Additional Session Judge, Jehanabad, and giving rise to instant case.
7. The main contention of learned counsel for the petitioners is that without any substantial cause and waiting for the report, which was called for earlier by the court below on filing of the petition on behalf of opposite party, the court below passed the impugned order, which was not sustainable as there was nothing like emergency. After initial hesitation, learned counsel representing the opposite party no. 2 also concedes to such state of affairs.
8. It is next contended on behalf of the petitioners, that in the change circumstance in view of the judgment and decree passed by Munsif, Jehanabad in Title Suit No.124 of 2001, wherein wife of petitioner no. 1 that is mother of rest of the petitioners. Zahada Khatoon was the plaintiff and opposite party no. 2 figures as defendant no. 1 with respect to same land, which was originally gifted by Nausaba Khatoon to Zahada Khatoon and opposite party no. 2 claims to be subsequent purchaser from said Nausaba Khatoon, but in the title suit, title and possession of the plaintiff has already been declared, thus the proceeding under Section 145 of Code of Criminal Procedure also must not be permitted to continue. Learned counsel for opposite party no. 2 submits that this matter should be left open for decision by the court below, on filing petition on behalf of the petitioners to this effect, but at the same time as regard to similarity of the parties and subject matter of the proceeding, learned counsel concedes to the factual position.
9. The law is clear on the point that in face of civil proceeding either by way of suit or appeal criminal proceeding under Section 145 of Code of Criminal Procedure with respect to same land between same/similar parties is not permissible. Any further continuance of Section 145 of Code of Criminal Procedure proceeding shall be nothing, but abuse of process of law and sheer wastage of time and energy.
10. In view of the above impugned orders as well as proceeding before the court below, bearing Case No. 1207 (M) of 2009 passed by learned Sub-Divisional Magistrate, Jehanabad vide order dated 06.12.1999 & Criminal Revision No. 40 of 2003 passed by 2nd Additional Session Judge, Jehanadbad vide order dated 09.12.2004, are hereby quashed and the application stands allowed.