Ramashish Mahto vs State of Bihar - 2023 Supreme(Pat) 823

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Pat) 823

IN THE HIGH COURT OF JUDICATURE AT PATNA
JITENDRA KUMAR, J.
Criminal Misc. No. 41429 of 2015
(10.10.2023)
Ramashish Mahto & Ors. ... Petitioners
vs.
State of Bihar & Ors. ... Opp. Party

Advocates appeared:
For the Petitioners: Mr. Sanjay Kumar @ S.K.
For the Opp. Parties : Smt. Anuradha Singh, APP.

Headnote:
Criminal Procedure Code, 1973 – Section 147 – Order for removal of obstruction from road – Magistrate is not called upon to decide title of any party – In present case, neither Magistrate nor Revisional Court has taken into consideration essential aspects required under Section 147 of Cr.P.C. and on other hand have felt prompted to decide up in title of second party over land in dispute on the basis of sale deed – Powers conferred on a Magistrate in this Section is intended to preserve public peace and not to determine right of parties like a Civil Court – Executive Magistrate has been authorised to invoke jurisdiction under Section 147, Cr.P.C. only for the purpose of preventing breach of peace – Magistrate has not been authorised under Section 147, Cr.P.C. to assume concurrent jurisdiction with competent Civil Court for adjudication on question of right, title, interest and possession over land or water of parties – In instant case, during pendency of civil suit between parties and subsisting injunction order in form of 'status quo' Magistrate erroneously passed restraining order with observation in favour of petitioners approving their easement right over disputed passage. (Paras 15, 16, 20, 35 and 36)
Criminal Procedure Code, 1973 – Sections 147 and 482 – Order for removal of obstruction from road – Apprehension of breach of peace is sine qua non for invoking jurisdiction under Section 147 of Cr. P.C. by Executive Magistrate – Mandatory requirement of initiation of a proceeding under Section 147 is of satisfaction of Executive Magistrate of existence of a dispute likely to cause breach of peace with respect to right of user of land within his local limits and of such satisfaction being recorded in writing – Concept of public order and peace is much wider concept than instances of tension between few individuals arising out of private disputes between them in regard to landed property – Section 147, Cr.P.C. does not provide any permanent relief in connection with property dispute between parties to a lis – Before passing order under Section 147, it is mandatory for Executive Magistrate to record his satisfaction that there exists a dispute which is likely to cause breach of peace – No such satisfaction has been recorded by Magistrate in impugned order – In our legal framework, power and jurisdiction are defined for different instrumentalities of State and no instrumentality is expected to exceed its jurisdiction and encroach upon that of others – Impugned orders quashed. (Paras 21, 23, 25, 37, 38 and 40)

Jitendra Kumar, J. – The present petition under section 482 Cr.P.C. has been preferred by the petitioners impugning the order dated 02.04.2014 passed by the Ld. Additional Sessions Judge-III, Muzaffarpur in Criminal Revision No. 124 of 2012 wherein order dated 03.04.2012 passed by Ld. Executive Magistrate in criminal proceeding No. 1389 of 2005 (Tr. No. 115 of 2012) under Section 147 Cr.P.C. has been upheld.

2. Relevant facts, as emerging from the record, is that respondent no.2 herein Rajendra Mahto filed one application before Ld. Sub-Divisional Magistrate, Muzaffarpur West against all the petitioners herein for initiation of proceeding under Section 147 Cr.P.C. and remove obstruction on road. It was averred in the petition that Respondent no.2 Rajendra Mahto has a house in Khesra No. 1591 (New Khesra No.1594) and to the west of his house, house of all the petitioners herein is situated and to the east of the house of the petitioners, the petitioners have sahan land and on this sahan land there is private rasta (way) measuring 10 feet wide x 43 feet long for about 50 years and this rasta is used by the Respondent no.2 to approach the main road for about 35 years. However, the petitioners have made cottage obstructing the rasta of the Respondent no.2.

3. In view of the aforesaid application, Ld. Sub-Divisional Magistrate initiated proceeding under Section 147 Cr.P.C. directing both the parties to put in written statement of their respective claims. After written statement of both the parties, evidence on behalf of both the parties was also recorded by Ld. Sub-Divisional Magistrate. After consideration of the material on record, Ld. Sub-Divisional Magistrate found that disputed land bearing Khata No. 164, new Khesra No. 1594, measuring 9 decimal belongs to the 2nd parties who are petitioners herein, but as per oral evidences of the witnesses, to the east of the house of the 2nd parties, who are petitioners herein, over the land bearing new Khesra No. 1594, there is one rasta measuring 10feet wide x 43 feet long which is used by the first party, who is respondent no.2 herein, and others to approach main road. However, the same has been obstructed by the 2nd parties who are petitioners herein by constructing cottage and other work over it.

4. On the basis of the aforesaid finding, Ld. Sub- Divisional Magistrate has opined that giving 10 feet wide road on a private land does not appear to be just and proper. Hence, she declares only 5 feet wide rasta over the land in issue to be used as rasta by the first party (Respondent no.2 herein) and others and restrained the 2nd parties (Petitioners herein) from creating any obstruction. The order was also directed to be operative with immediate effect till it is set aside by competent Court.

5. Being aggrieved by the aforesaid order dated 03.04.2012 passed by Ld. Sub-Divisional Magistrate in Criminal Proceeding bearing No. 1389 of 2005, the 2nd parties (Petitioners herein) preferred Criminal Revision bearing No. 124 of 2012 before the Sessions Court, Muzaffarpur. However, the criminal revision was dismissed by Additional Sessions Judge-III, Muzafarpur holding that there is no reason to interfere in the order passed by the Ld. Sub-Divisional Magistrate.

6. It also transpires from the record that the petitioners herein, who are 2nd parties before Ld. Executive Magistrate have filed a Civil Suit on 02.05.2014 bearing Title Suit No. 513 of 2014 against the Respondent no.2 who was first party before the Ld. Sub-Divisional Magistrate for declaration of title and confirmation of possession, as well as for restraining the respondent no.2 from taking any forceful step over the land in question which is subject matter of criminal proceeding before the Ld. Sub-Divisional Magistrate. He has also filed interim application before Ld. Civil Court for interim injunction against the respondent no.2 herein. However, Court of Ld. Sub Judge-XI, Muzaffarpur vide order dated 04.11.2016 has dismissed their interim a