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1983 Supreme(Pat) 147
HIGH COURT OF PATNA
A. P. Sinha, J.
Binoga Yadav and 3 others - Petitioners
Versus
The State of Bihar and 8 others - Opposite Parties
Criminal Revision no. 36 of 1983
Decided on : 5.5.1983
For the Petitioners: M/s Balbhadra Prasad Singh and Nand Kishore Prasad.
For the Opp. Parties: M/s R. K. P. Verma & Nand Kishore Pd. No.1.
The mandatory requirement under the proviso to Section 147(3) of the Code of Criminal Procedure, 1973, necessitates a finding on the exercise of the right within a specific time frame before passing an order under Section 147(3).
Headnote:
{'KEYWORD': 'CRIMINAL PROCEDURE CODE, 1973 - SECTION 147 - RIGHT OF USER - CONDITION PRECEDENT', 'SUBJECT': 'Proceeding under Section 147 of the Code of Criminal Procedure, 1973', 'ACT SECTION LIST': 'SECTION 147 OF THE CODE OF CRIMINAL PROCEDURE, 1973'}
Fact of the Case:
Dispute over the right of user of a drain for the flow of water, leading to a proceeding under Section 147 of the Code of Criminal Procedure, 1973.
Finding of the Court:
The impugned order was set aside due to the failure of the court below to consider the mandatory requirement under the proviso to Section 147(3) of the Code, which necessitates a finding on the exercise of the right within a specific time frame.
Issues: Whether the court below erred in passing an order under Section 147(3) of the Code without considering the mandatory requirement of the proviso regarding the exercise of the right within a specified time frame.
Ratio Decidendi: The proviso to Section 147(3) of the Code of Criminal Procedure, 1973, is mandatory and requires a finding on the exercise of the right within a specific time frame before passing an order under Section 147(3). The court below failed to consider this requirement, rendering the impugned order legally invalid.
Final Decision: The application was allowed, the impugned order was set aside, and the case was remanded back for a fresh decision in accordance with the law and the observations made by the court.
Anand Prasad Sinha, J. - This application is directed against the ORDER :dated 6-1-1983 passed in Case No. 104 (M) 1981/T. R. No. 14/81/T. R. No. 204/81 by Shri Chandranand Jha, Executive Magistrate, Dinapore, in a proceeding under section 147 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) by which the petitioners have been directed to remove the obstructions caused in the drain through which the opposite parties are entitled to flow the water of their houses so that water may flow in a normal manner terminating in Karna canal.
2. It appears that proceeding under section 147 of the Code had been started on the basis of a police report on 8.6.1981. As a matter of fact earlier a petition had been filed by opposite party no. 2. According to his case, he has a pucca house on survey plot No. 483. Khata No. 377, situated at village Rampur Nagwan, P.S. Paligunj, District Patna. North to the house, there is a lane 5 fit. wide running east to west. Further, north of that lane is the house of the petitioners on plot No. 485, khata No. 377. The drain water of opposite party No. 2 used to flow through kacha drain towards north to the house and thereafter to the west terminating in the canal drain which runs from north to south and, thereafter, to the west side since before and in the month of July, 1980, when opposite part No. 2 was converting that kacha drain into a pucca one, to which the petitioners had obstructed. A Panchaiti was held and the punches, after making local inspection, had authorized the opposite party No. 2 to make pucca drain and this decision of the Punch had been given on 16-7-1980. According to the case of opposite party No. 2, pucca drain had been constructed on 16-7-1980 without any objection and since then the drain water of the opposite party No. 2 has been flowing from the pucca drain.
3. According to the allegations, the petitioners had formed a group and on 2-2-1931 obstructed the flowing of the water by force and that caused, accumulation of water and also started causing damage to the hose wall of opposite party No. 2. Opposite party No.2, accordingly filed an application before the Sarpanch of Gram Panchayat Rampur Nagwan, which he forwarded to the Sub-divisional Officer on 3-2-1981.
4. It appears that the petition of the opposite party No. 2 had been sent to the Circle Officer, Paliganj for inquiry and report. But that been recalled and a Pleader Commissioner was appointed. The objection was filed by the petitioners and the inquiry from the Pleader Commissioner had also be recalled and the enquiry was given to one Shri A. Toppo, Executive Magistrate. Also a report had been called for from the Officer Incharge of the concerned police station. When the report from the Officer Incharge had been received, the proceeding had been drawn as stated above.
5. The case of the petitioners appears to be that the allegations put forward both regarding the existence of the Nali as claimed by opposite party No. 2 and the obstruction caused by the petitioners are not correct. According to the case of the petitioners, contiguous north to the lane is the house and Sahan of Basawan Yadav having plot No. 485, Khata No. 377. According to the case of the petitioners, no clear Khesra regarding the involved plots had been mentioned. Further, the outlet of water was not north to west but north to east. The flow of water towards west has been denied. Also it has been denied that after flowing towards west, the water falls in Karha canal. It has also been denied that the petitioners have closed the drain.
6. Further, it appears that the petitioners have challenged the report of the pleader commissioner, which appeared to be in favour of opposite party No.2. It also appears that the police report was also in favour of opposite party No.2.
7. Learned counsel appearing on behalf of toe petitioners has submitted that the impugned ORDER :suffers from infirmity in the manner that the ORDER :is not in acc
