IMPORTANT POINTS
(1) Dispute over right to use pathway likely to cause breach of peace – Power under Section 147 Cr.P.C. cannot be exercised by any Executive Magistrate or Sub-Divisional Magistrate if obstruction is existing for a long period of time.
(2) Exclusive right of petitioners to carry out construction over his own property is sought to be curtailed in exercise of power under Section 147 of Cr.P.C. which is not permissible in law.

JUDGMENT

I.A. No. 15346 of 2025

Heard the parties.

2. This interlocutory application has been filed with the prayer for early hearing of this criminal miscellaneous petition.

3. Since, hearing of this criminal miscellaneous petition is taken up today, hence, this interlocutory application is disposed of being infructuous.

Anil Kumar Choudhary, J.—

Heard the parties.

2. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with the prayer to quash the order dated 03.06.2024, passed in Criminal Revision No. 73 of 2023 by the learned Sessions Judge, Garhwa whereby and where under the learned Sessions Judge has dismissed the Criminal Revision filed against the order dated 21.08.2023, passed by the learned Sub Divisional Magistrate, Garhwa in Misc. Case No. 355 of 2020. Prayer has also been made to quash the order dated 21.08. 2023, passed by the learned Sub Divisional Magistrate, Garhwa in Misc. Case No. 355 of 2020 in exercise of the power under section 147 Cr.P.C. by which direction has been given to the petitioner to remove the wall which is 112 feet long and 5 feet wide on Khata No. 27, Plot No. 1229 of Village –Tandwa. Further consequential reliefs have also prayed for in this criminal miscellaneous petition.

3. The brief fact of the case is that the opposite party no.2 filed an application before the Sub Divisional Magistrate, Garhwa urging upon the Sub Divisional Magistrate that a dispute which may likely to cause a breach of peace exists regarding the right of the petitioners to use the path to approach the road going towards Ranka. It was further claimed that water of Jhunukia Pond is being obstructed by construction of the boundary wall by the petitioners herein; who were the second party before the Sub Divisional Magistrate, Garhwa. The undisputed fact remains that the petitioners have constructed the boundary wall over their own raiyati land. The said boundary wall was constructed in the year 2010. The Sub Divisional Magistrate drew up a proceeding under Section 147 Cr.P.C and asked the parties to the case to file their statement of facts. In the statement of facts filed by the first party before the Sub Divisional Magistrate, Gahrwa who is the opposite party no.2 of this criminal miscellaneous petition, the first party to the proceeding under Section 147 of Cr.P.C. has nowhere stated as to on which date, the petitioners herein constructed the boundary wall over their own raiyati land nor it has been mentioned as to on which date the first party last used the path which he claims to have been used before construction of the boundary wall by the petitioners herein. The Sub Divisional Magistrate, Gahrwa considered that because of construction of the boundary wall by the petitioners herein, over their own raiyati land, the opposite party no.2 herein, has to go through the land of other persons to approach the Garhwa-Ranka Main Road. The Sub Divisional Magistrate, Gahrwa also considered that by the construction of the boundary wall, the culvert situated on the main road has been blocked. The exit way for the water of the Jhunukia Pond to go out has been closed and the same amounts to encroaching the public place. So, the water of Jhunukia Pond is getting accumulated towards the southern side of the house of the first party and the Sub Divisional Magistrate, Garhwa directed the petitioners to remove the wall blocking the 112 feet length and 5 feet width road, which is also causing obstruction of the exit of water from Jhunukia Pond and went on to the order that failing in compliance of the said order, the said wall shall be removed by the administration. Being aggrieved by the order dated 21.08.2023, passed in Misc. Case No. 355 of 2020 by the Sub Divisional Magistrate, Garhwa, the petitioners filed Criminal Revision No. 73 of 2023 in the court of Sessions Judge, Gahrwa. The learned Sessions Judge, Garhwa considered that at present, there is n