A set-aside order has no legal standing and cannot be used as the basis for subsequent actions; the Magistrate's jurisdiction under Section 147 of the Cr.P.C. is limited to maintaining temporary peace.

JUDGMENT :

ANIL KUMAR CHOUDHARY, J.

1. Heard the parties.

2. This Writ Petition (Cr.) under Article 226 of the Constitution of India has been filed with a prayer to quash the order dated 10.05.2023 passed in Miscellaneous Case No.767 of 2013 by the respondent No.4 whereby and where under the respondent No.4 directed the petitioners to remove the obstruction/boundary wall within a period of 15 days from the piece of land appertaining to plot Nos.1371 and 1372 under Khata No.141 situated at village Lalgarh, P.S.-Bishrampur, District-Palamu.

3. The brief fact of the case is that on the basis of the application submitted by the first party, Miscellaneous Case No.767 of 2013 in the court of Executive Magistrate, Sadar, Medininagar was registered under Section 147 of the Cr.P.C. It was contended by the first party to the said proceeding who are the respondent Nos.5 to 7 of this Writ Petition (Cr.) that a public road exists on the disputed land which was used by the members of the first party to the said proceeding which has been blocked by the members of the second party of that proceeding, who are the writ petitioners herein, by constructing a wall over the same. The Executive Magistrate made an order in writing stating the grounds of his being so satisfied as contended by the first party and required the parties to put in their written-statement. The parties put in their written-statement. Vide order dated 20.03.2021, the Executive Magistrate after considering the materials in the record, came to the conclusion that there is no public road on the disputed plot, hence, dismissed the application under Section 147 of the Cr.P.C. On being aggrieved by the order of the Executive Magistrate, the first party to the said proceeding who are respondent Nos.5 to 7 of this Writ Petition (Cr.), preferred Criminal Revision No.50 of 2021 in the court of Sessions Judge, Palamau at Daltonganj which was ultimately heard and disposed of by the learned Additional Sessions Judge-II, Palamau at Daltonganj. The learned Additional Sessions Judge-II, Palamau at Daltonganj found that the Executive Magistrate did not consider the recent survey Khatiyan, as the same was not finally published but on the other hand relied upon the sale-deed in favour of the second party and rent receipt and ignored the report of the concerned police station, wherein the disputed land was shown to be a passage which the second party to the said proceeding promised to vacate in two months and as the order of the Executive Magistrate impugned before it, was not in consonance with law, set aside the order dated 20.03.2021 passed in Miscellaneous Case No.767 of 2013, remitted the case back to the Executive Magistrate for passing a fresh order.

4. It is pertinent to mention here that the said order dated 20.03.2021 passed in Miscellaneous Case No.767 of 2013, has not been challenged by the writ petitioners, hence, the same has attained finality. In this Writ Petition (Cr.) also, the said order dated 21.02.2022 passed in the said Criminal Revision No.50 of 2021 has not been challenged by the writ petitioners.

5. After the case was remitted, the Executive Magistrate, Sadar, on the basis of the evidence in the record, considered that as per the villagers, the ancestors of the first party to the said proceeding used to use the plot Nos.1371 and 1372 as their exit and at present, a temple of Lord Shankar was existing over the plot Nos.1371 and 1372 and also considered that since the undisputed fact remains that the temple of Lord Shankar exists over the plot Nos.1371 and 1372 and because of the wall constructed by the second party the writ petitioners, the entry and exit route of the temple has been obstructed, therefore, directed the writ petitioners being the members of the second party of the said proceeding of Miscellaneous Case No.767 of 2013 to remove the obstruction within fifteen (15) days over the plot Nos.1371 and 1372.

6. Learned counsel for the petitioner submits that the order date