The decision in a suit will prevail upon the decision of the Magistrate in a proceeding under Sec. 145, Cr. P.C., and dropping the proceeding may lead to further apprehension of breach of peace.

1. Having heard learned counsel for the petitioner, this application is being disposed of finally at the admission stage itself.

2. It appears that in the year 1979, a proceeding u/s. 144. Cr. P.C. was drawn up respecting certain land as detailed in Annexure-l which was subsequently converted into one u/s. 145, Cr. P.C. 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 u1e 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.

3. 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 Ram Chandra Rai and others V/s. State of Bihar and others. 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 under Sec. 145, Cr. P.C. 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.

4. In this decision, reliance has also been placed on an earlier decision of this Court reported in Kamleshwari Rai and others V/s. Keshav Raj and others, 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 decision 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.

5 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.

6. It goes without saying that any decision in a proceeding u/s. 145, Cr. P.C. is subject to the decision of a suit by a competent jurisdiction. In a proceeding under Sec. 145, Cr. P.C., 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 sou