Nagendra Prasad Singh J:,

This is an application for quashing a proceeding initiated under section 145 of the Code of Criminal Procedure, 1898 (hereinafter referred to as the Code) be the sub-divisional Magistrate, Sikarhna. The petitioners are the members of the first party in the said proceeding. According to the petitioners, the proceeding in question could not have been initiated in view of the fact that on the relevant date a proceeding under section 48-E of the Bihar Tenancy Act, Act, VIII of 1885. (hereinafter referred to as the Act) was pending. As such, the precise question which is to be answered is as to whether during the pendency of a bataidari case under Section 48-E of the Act, a proceeding under section 145 of the Code can be drawn up and decided by the Magistrate having jurisdiction over the land in Question. The matter was heard by a Bench of this Court presided over by Mr. Justice C. N Tiwary and Mr. Justice Uday Sinha. According to Mr. Justice C.N. Tiwary, no proceeding under section 145 of the Code can be initiated while a dispute under section 48-E of the Act, is rending before the appropriate authorities. On the other hand, Mr. Justice Uday Sinha was of the view that there is nothing under section 48-E of the Act, which bars the jurisdiction of a Magistrate to initiate a proceeding under. section 145 of the Code and to decide the same in order to maintain peace in the locality. There being difference of opinion between the two learned Judges of this Court, the matter has been placed before me.

2. The facts of the case has been mentioned in the two judgments and for my purposes it is suffice to say that on 6.11.1972, members of the opposite party filed petition, in accordance with section 48 E of the Act, alleging that they were bataidars in respect of different blocks of land, the total area where of was 28 highas 17 kathas 9 dhurs and they were likely to be dispossesed by the petitioners who were the landlords of the land in question. On the basis of the petitions filed on behalf of the opposite Piuty, bataidari cases, perhaps, six in number, were registered and notices were issued to the petitioners on 11.11.1972. In the meantime, the local Sarpanch made a report to the learned Sub-divisional Magistrate, Sikarhna regarding the apprehension of breach of peace in respect of the aforesaid 28 bighas 17 kathas 9 dhurs of land and on the basis thereof, on 23.11.1972, a proceeding under section 144 of the Code was initiated. This was converted into a proceeding under section 145 of the Cede on 15.1.1973 and the lands were ordered to be attached in exercise of the powers conferred be the proviso to subsection (4) of section 145 or the Code. This very order is the subject matter of controversy in the present application. In the order dated 15.1.1973, learned Sub-divisional Magistrate has mentioned that a bataidari case in respect of the lands in question was pending in the Court of the Deputy Collector. Land Reforms between the same parties From this it is apparent that he was quite conscious about the pendency of a bataldari case under the provision of section 48-E of the Act, Now the question is as to whether under the aforesaid circumstances, the order for drawing up a proceeding under section 145 of the Code and passing an order of attachment in accordance with the said section was legal and valid.

3. Section 48-E in its present form was introduced by the Bihar Act, VIII of 1970. It provides a procedure for prevention of threatened ejectment of under-raiyat and restoration to possession of an under-raiyat unlawfully ejected. Sub Section (1) prescribes that if an under- raiyat is threatened with unlawful ejectment from any portion of the land by his landlord or "if there is a dispute between them over the possession of land, crop or produce thereof either on the ground of non-existence of relationship of landlord and tenant between them or otherwise", the Collector on his own motion or on an application