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2006 (4) Crimes 193
PATNA HIGH COURT
Navin Sihna, J.
Md. Sarfuddin @ Sarfuddin Mian — Applicant
versus
Sabir Thakur and another — Respondents
Criminal Misc. No. 29693 of 2003
Decided on 18-11-2005
IMPORTANT POINT
There is a vital interdict on powers and jurisdiction of Magistrate in passing any final order under section 147, CrPC unless he is satisfied that within three months next of report of police officer, right as alleged had been exercised.
Headnote:Criminal Procedure Code, 1973 — Section 147(3) — Initiation of proceedings u/s 147 CrPC on a petition preferred by opposite party 2 — Direction given by Magistrate to petitioner not to interfere with user of land in question — Revision — Dismissed affirming findings of Executive Magistrate that failure of Magistrate to record such user within three months next from date of report of Police officers was not fatal to initiation of proceedings — Application there against — There is a vital interdict on powers and jurisdiction of Magistrate and passing any final order under section 147, CrPC unless he is satisfied that with in three months next of report of police officer, right as alleged had been exercised — Where right claimed is one which was exercisable at all times of year, it is duty of Magistrate to give a finding to effect that said right was executed within three months prior to date when Magistrate heard grievance and took action on allegation by directing an enquiry by police — Held proviso to sub-section (3) of section 147 of code is of mandatory nature and in absence of any findings whatsoever, that would strike at root of jurisdiction for passing a valid and legal order under section 147 of code — Simply a finding that opposite party 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 — Hence application allowed — Impugned orders set aside and matter remanded to Court of Magistrate concerned to proceed afresh.
Result: Application allowed.
JUDGMENT
Navin Sinha, J. — Heard learned Counsel for the petitioner, learned
Counsel for the State as also learned Counsel appearing on behalf of opposite party No. 1.
The present application arises out of a proceeding initiated under section 147 of the Cr.P.C. on a petition preferred by the opposite party No. 2. By order dated 16.1.2003 the Executive Magistrate, Chapra after hearing the parties directed the present petitioner not to interfere with the user of the land in question as a passage by opposite party No. 1 recording his satisfaction that the same was being so used by opposite party No. 1 for the previous move than approximately 35 years. A revision having been preferred against the same by the petitioner, Cr. Rev. No. 66/2003, before the IVth Additional Sessions Judge, Saran, came to be dismissed on 29.5.2003 affirming the finding of the Executive Magistrate holding that the failure of the Magistrate to record such user within the three months next from the date of report of the police officer was not fatal to the initiation of proceedings.
2.Learned Counsel for the petitioner has raised a very short question of law in support of that proviso to section 147(3) of Cr.P.C. would be mandatory in nature before the final orders would have been passed by the Magistrate exercising jurisdiction under section 147 of the Cr.P.C. He submits that this satisfaction was the sine qua non for the exercise of the power and in absence of which the order would be bad as being without jurisdiction. He relies upon two judgments of this Court Tirjogi Narayan Singh and others v. Kamta Prasad and another1 and Binoga Yadav and others v. The State of Bihar and others2 to submit that in absence of such satisfaction having not been recorded in the order the same is vitiated and is liable to be set aside. The Revisional Court would have seriously erred in law by recording that non-compliance of the mandatory provision was not fatal to the case.
3.Learned Counsel for the opposite party No. 1 from the order of the Magistrate sought to submit that the petitioner was not bona fide in pursuing the matter. He would have been unnecessarily trying to delay the proceeding despite imposition of costs and that the present application was a part of the same process and the present application was, therefore, fit to be dismissed.
4.This Court would consider it proper to set out section 147 (3) in its entirety which is quoted below: —
“If it appears to such Magistrate that such right 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 police officer or other information leading to the institution of the inquiry, or where the right is exercisable only at particular sessions 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.”
5.From a bare reading of the proviso it is apparent that there is a vital interdict on the powers and 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 in AIR 1955 Pat 265, relied upon by the petitioner would have noticed that where the right claimed as 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
