Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Pat) 1228

IN THE HIGH COURT OF JUDICATURE AT PATNA
JITENDRA KUMAR, J.
Ramashish Mahto S/o Late Jubi Mahto – Appellant
Versus
The State Of Bihar – Respondent
Criminal Miscellaneous No.41429 of 2015
Decided on : 10-10-2023

Advocates:
Advocate Appeared:
For the Appellant :Mr. Sanjay Kumar @ S.K., Advocate
For the Respondent: Smt. Anuradha Singh, APP

IMPORTANT POINT
The main legal point established in the judgment is that the jurisdiction under Section 147 Cr.P.C. is intended to maintain public order and peace, and the orders passed by the Executive Magistrate are temporary in nature, continuing until the rights of the parties are adjudicated by a competent Civil Court.

Headnote:
Code of Criminal Procedure, 1973–Section 147–Dispute concerning right of use of land or water–it emerges from the statutory provisions and judicial decisions, that Section 147 can be invoked by an Executive Magistrate subject to following conditions:–(a) There is a dispute between the parties regarding any alleged right of user of any land or water–(b) The Executive Magistrate is satisfied as per police report or otherwise that such dispute is likely to cause breach of peace. Such satisfaction must be recorded in writing based on stated grounds.–it also emerges that when proceeding under section 147 Cr.P.C. is initiated by Executive Magistrate, is required to conduct enquiry into the existence of alleged rights of the party by way of inviting written statements and evidence of the parties concerned–when it is found that such right exists regarding casement or otherwise, the Executive Magistrate is empowered to make order prohibiting any interference in the exercise of such right and an order for removal of any obstruction in the exercise of such right–in the present case, the learned Executive Magistrate has not recorded any satisfaction regarding apprehension of breach of peace, nor is any material on record to show that any person other than the parties to the dispute are affected by the dispute–no public at large appear to be interested or affected in the dispute–on the basis of such facts and circumstances there was no occasion of any apprehension of breach of peace affecting public at large and there was no occasion for the Executive Magistrate to invoke such jurisdiction u/s 147 Cr.P.C.–apprehension of breach of peace is sine qua non for invoking jurisdiction u/s 147 Cr.P.C. by Ld. Executive Magistrate–the parties to the dispute had remedy to approach Civil Court in regard to their easementary or other rights–in fact, petitioners (2nd party therein), have already filed a Civil Suit–impugned orders set aside–present petition allowed. (Paras 34, 35, 37 to 39)
2013 SCC Online Ori 439, 2008 SCC Online HP 99 para 12 & 13, 2008 SCC Online Jhar 463, 2002 SCC Online Ori 185, 1970 SCC Online MP44 para 12, 1959 SCC Online Gau 4, 2016 SCC Online Cal 10028, 2015 SCC Online Pat 1644, 2017 Cri. L.J. 3861, 2017 Cr. L.J. 3307 Para 6, 2013 Cr. L.J. 1750, 2009 SCC Online Cal 1525, 2008 Cri. L.J. (NOC) 814 Jhar, 2005 SCC Online Pat 939, AIR 1955 Pat 265, 2010 SCC Online Del 4212–Referred.

JUDGMENT :

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 application f