Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.44494 of 2010 ====================================================== 1. Manoj Kumar Singh S/O Sri Deodatta Singh Resident Of Village- Chapar Jorawar, P.S.- Mohiuddin Nagar, Distt.- Samastipur Versus .... .... Petitioner/s 1. The State Of Bihar 2. Mostt. Shyama Devi W/O Late Jagarnath Singh Resident Of Village- Chapar Jorawar, P.S.- Mohinddin Nagar, Distt.- Samastipur .... .... Opposite Party/s ====================================================== CORAM: HONOURABLE MR. JUSTICE DINESH KUMAR SINGH ORAL ORDER 7 01-11-2013 The present application has been filed for quashing the order dated 05.10.2010 passed by Sri Narayan Pandit, learned 1st Addl. Sessions Judge, Samastipur in Cr. Revision. No. 607 of 2004, whereby the order dated 07.10.2004, passed by learned Sub-Divisional Magistrate, Patory in M.R. No. 145 of 2003 has been set aside, whereby the opposite party No. 2 had been directed to remove the obstructions from Plot No. 887(old) 2336, 2337, 2326(new) of Khata No. 395 with observation that the order will remain in force till it is set aside by the Court having competent jurisdiction and thereby the easementary right of the petitioner was declared in his favour. The brief factual background of the case is that the proceeding under Section 147 of the Cr.P.C. was initiated by the Sub-Divisional Magistrate, Patory against the opposite /2nd party vide order dated 07.10.2004 on the
Legal Reasoning
Patna High Court Cr.Misc. No.44494 of 2010 (7) dt.01-11-2013 2/10 application of the petitioner /1st party. The case of the petitioner 1st party was that, he purchased the land of Plot No. 887(old) 2336, 2337, 2326(new) of Khata No. 395 through registered sale deed dated 05.01.1960 over which he constructed the house and has been living therein and there is a rasta in front of his house which has been obstructed by the opposite/2nd party. On the basis of the petition of the petitioner, the Circle Officer, Mohiuddin Nagar held local inspection and submitted a report that there is a rasta over the disputed area and there is no other rasta for ingress or outgress for the petitioner/1st party. The case of opposite /2nd party is that her residential house is situated on the part of the same land, which was purchased by Late Taknath Singh, the husband of opposite/2nd party through a registered sale deed dated 05.01.1960 from Ramashish Singh having an area of 2 Kathas and 8 dhoor, on which the petitioner/1st party claims road through sahan of the house of the opposite/2nd party. On the basis of the application of the petitioner/1st party, proceeding under Section 147 Cr.P.C. was initiated vide order dated 07.10.2004. Subsequently other side was noticed, who appeared and filed their show cause. Considering the evidence adduced and the report of the Circle Officer, Mohiuddin Nagar, learned Sub-Divisional Magistrate, Patory held that petitioner/1st Party has easementary right on the disputed road. Hence, opposite/2nd party was directed to Patna High Court Cr.Misc. No.44494 of 2010 (7) dt.01-11-2013 3/10 remove the obstructions from Plot No. 887(old) of Khata No. 395 having an area of 300 kari in length and 12 kari in width within a period of twenty five days, otherwise it will be treated as violation of the order of learned Sub-Divisional Magistrate, Patory and it was further directed to take legal action, in case of non-compliance of the order. The said order was directed to be valid until some competent Court passes any other order. The said order has been brought on record as Annexure-2. The
Decision
order of learned Sub-Divisional Magistrate, Patory was challenged by the opposite/2nd party in Cr. Revision No. 607 of 2004 which was dismissed by learned 1st Additional Sessions Judge, Samastipur on 09.03.2006 affirming the order of learned Sub-Divisional Magistrate, Patory on the ground that learned Sub-Divisional Magistrate, Patory subsequently mentioned in his order that the order will be valid until the said order is reversed by a Competent Court and the said Competent Court referred by the Executive Magistrate, in the opinion of learned 1st Additional Sessions Judge, was Civil Court. Hence, it was held that the opposite/2nd party ought to have moved the Civil Court, instead of filling criminal revision. The said order is contained in Annexure-3. Subsequently, when the order of learned Sub- Divisional Magistrate, Patory dated 07.10.2004 was not implemented for four years, the petitioner/1st party filed Cr. W.J.C. No. 478 of 2008 for commanding the respondent Patna High Court Cr.Misc. No.44494 of 2010 (7) dt.01-11-2013 4/10 authorities to execute the order dated 07.10.2004 passed by learned Sub-Divisional Magistrate, Patory in M.R. No. 145 of 2003, which was ultimately disposed off on 28.04.2010. The order dated 09.03.2006 passed by learned 1st Additional Sessions Judge, Samastipur in Cr. Revision No. 607 of 2004 was challenged by opposite/2nd party before this Court in Cr. Misc. No. 39146 of 2008 in a quashing application when the same was allowed and the order dated 09.03.2006 passed by learned 1st Additional Sessions Judge, Samastipur in Cr. Revision No. 607 of 2004 was quashed on the ground that learned Sessions Judge failed to decide the revision on merits and the matter was remitted back to revisional Court for adjudication of case on merits, preferably within five months. The said order has been annexed as Annexure-4. On remand, learned 1st Additional Sessions Judge, Samastipur allowed Cr. Revision No. 607 of 2004, on the ground that learned Court below ought to have got local inspection conducted, when an application under Section 310 of the Cr.P.C. was filed on behalf of opposite/2nd party and thereby, the order dated 07.10.2004 passed in M.R. Case No. 145 of 2003 by learned Sub-Divisional Magistrate, Patory whereby opposite/2nd party was directed to remove the obstruction, was set aside. The order of the revisional Court dated 05.10.2010 passed by learned 1st Additional Sessions Judge, Samastipur is the impugned order in the present proceeding. Patna High Court Cr.Misc. No.44494 of 2010 (7) dt.01-11-2013 5/10 It is submitted by learned counsel for the petitioner/1st party that the order was passed by learned Sub- Divisional Magistrate, Patory, on the basis of the report of the Circle Officer, Mohiuddin Nagar and the evidence adduced by the parties and the revisional Court has mechanically set aside the order, little realizing that local inspection was done by the Circle Officer and Amin. It is submitted by learned counsel for the opposite/2nd party that the matter relates to encroachment on a public land and proceeding ought to have been initiated under Public Land Encroachment Act. The right of easement can only be decided, as provided under the Easement Act. Learned Sub-Divisional Magistrate, Patory failed to give any finding under Section 147(3) of the Cr.P.C. which is mandatory in nature. The application of the opposite /2nd party under Section 310 of the Cr.P.C. was mechanically rejected, as a result learned Sub-Divisional Magistrate, Patory failed to reach to the just decision of the case. Considering the rival submissions of the parties, this Court is of the view that the provisions of Section 147(3) Cr.P.C. is mandatory in nature and learned Sub- Divisional Magistrate, Patory has not given any finding to that effect before deciding the issue. The provision of Section 147(3) of the Cr.P.C. reads as follows:- “147(3) If it appears to such Magistrate that Patna High Court Cr.Misc. No.44494 of 2010 (7) dt.01-11-2013 6/10 such rights exist, he may make an order prohibiting any interference with the exercise of such right, including, in a proper case, an order for the removal of any obstruction in the exercise of any such right: Provided that no such order shall be made where the right is exercisable at all times of the year, unless such right has been exercised within three months next before the receipt under sub-section(1) of the report of a police officer or other information leading to the institution of the inquiry, or where the right is exercisable only at particular seasons or on particular occasions, unless the right has been exercised during the last of such seasons or on the last of such occasions before such receipt.” In the case of Trijogi Narayan Singh and Others versus Kamta Prasad, reported in AIR 1955 Patna 265, In paragraph 3 it is held that an order under Section 147 Cr.P.C. is in that jurisdiction, if it made in absence of any finding under Section 3 of Section 147 of Cr.P.C. “3………It has been laid down in – „Guru Prosad Dhar v. Lachman Ram Ghose‟, 19 Ind Cas 959(I)(Cal)(F), that an order under S. 147, Criminal P.C., is without jurisdiction Patna High Court Cr.Misc. No.44494 of 2010 (7) dt.01-11-2013 7/10 if it is made in the absence of any finding that the right was exercised within three months anterior to the enquiry. In-„Babu Khan v. Raj Kishore Pershad Narayan Singh‟, AIR 1919 Pat 477(G), his Lordship Das J., relied on this case of the Calcutta High Court and held that, in the absence of such a finding, the order was without jurisdiction. The same view was taken by Sir Jwala Prasad J., in – Grant v. Padarath Jha‟, AIR 1921 Pat 486(H), and by Kulwant Sahay, J., in – „Sirkawal Singh v. Bhuja Singh‟, AIR, 1924 Patna 784 (I), following „AIR‟ 1921 Pat 486(H)‟. He held that a final order under S. 147, Criminal P.C., cannot be maintained in the absence of a finding that the right had been exercised within the period as specified…..” The issue was considered by this Court in the case of Binoga Yadav and others versus The State of Bihar and others reported in 1984 PLJR 629, where it was held that proviso to sub-section 3 of Section 147 of the Cr.P.C. is mandatory in nature and in absence of such finding will hit the root of the jurisdiction for passing valid and legal order under Section 147 of the Cr.P.C. Paragraph 15 of which reads as follows:- “15. The proviso to sub-section(3) of Sec. Patna High Court Cr.Misc. No.44494 of 2010 (7) dt.01-11-2013 8/10 147 of the Code is of mandatory nature and in absence of any finding what-so- ever, that will strike at the root of the jurisdiction for passing a valid and legal order, under Section 147 of the Code. Simply a finding that Opposite Party No. 2 had a right of user is not sufficient in itself from the legal validity point of view unless there is a finding regarding the period of user as contemplated under the proviso to sub-section (3) of Section 147 of the Code.” The mandatory nature of giving finding under 147(3) Cr.P.C. has already been considered by this Court in the case of Md. Sarfuddin @ Sarfuddin Mian versus Sabir Thakur and another reported in 2006(1) PLJR 190. Paragraph 6 of which reads as follows:- “6. From a bare reading of the proviso it is apparent that there is a vital interdict on the powers and the jurisdiction of the Magistrate and passing any final order under Section 147 Cr.P.C. unless he be satisfied that within three months next of the report of the police officer, the right as alleged had been exercised. The proviso would open with the words “no such order shall be made”. This Court in the judgment reported in A.I.R. 1955. Patna 265 relied Patna High Court Cr.Misc. No.44494 of 2010 (7) dt.01-11-2013 9/10 upon by the petitioner would have noticed that where the right claimed is one which was exercisable at all times of the year, which is the case presently, it was the duty of the learned Magistrate to give a finding to the effect that this right was exercised within three months prior to the date when the learned Magistrate heard the grievances and took action on the allegation by directing an enquiry by the police. The court would have recorded simply that this would be mandatory requirement of law.” The provision of local inspection as incorporated under Section 310 of the Cr.P.C. reads as follows:- “310. Local inspection.- Any Judge or Magistrate may, at any stage of any inquiry, trial or other proceeding, after due notice to the parties, visit and inspect any place in which an offence is alleged to have been committed, or any other place which it is in his opinion necessary to view for the purpose of properly appreciating the evidence given at such inquiry or trial, and shall without unnecessary delay record a memorandum of any relevant facts Patna High Court Cr.Misc. No.44494 of 2010 (7) dt.01-11-2013 10/10 observed at such inspection.” The aforesaid provisions suggest that in such an inquiry, trial or other proceeding, after due notice to the parties, inspection can be done for the purpose of appreciating the evidence. In view of this Court, learned Sub-Divisional Magistrate, Patory erred in rejecting the prayer for inspection under Section 310 of the Cr.P.C. In view of the above discussion, this Court is not inclined to interfere with the impugned order dated 05.10.2010 passed by learned 1st Additional Sessions Judge, Samastipur in Cr. Revision No. 607 of 2004. But the order is modified to the extent that the matter is remanded back to learned Sub-Divisional Magistrate, Patory to proceed in accordance with law, in view of the observations made above within a period of four months from the date of receipt/production of the copy of this order, when it is expected that both sides shall cooperate. Accordingly the application is disposed off. Let the order of this Court be transmitted through FAX to the learned Court below at the cost of the petitioner. Shageer/- (Dinesh Kumar Singh, J)