Petition under Section 482 CrPC cannot raise grounds available but omitted in prior revision against Section 147 proceedings directed by final revisional order.

JUDGMENT :

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 and set aside the order dated 12.09.2022 passed by the Sub-Divisional Magistrate, Rajmahal in Cr. Misc. Case No.562 of 2022 as well as the order dated 04.08.2023 passed by the learned Additional Sessions Judge-I, Rajmahal in Criminal Revision No.102 of 2022 whereby and whereunder the learned Additional Sessions Judge-I, Rajmahal has upheld the order dated 17.11.2022 passed by the learned Sub-Divisional Magistrate, Rajmahal in Cr. Misc. Case No.562 of 2022 whereby in exercise of the power under section 147 of CrPC, the obstruction caused by a wall and a tanti constructed thereon over a 10 ft. wide road was directed to be removed.

3. The brief fact of the case is that the Sub-Divisional Magistrate, Rajmahal in Cr. Misc. Case No.284 of 2021 first exercised the power under Section 133 of Cr.P.C. while the case was filed for right of way under Section 147 of Cr.P.C. The said order of the SDM, Rajmahal was challenged in Cr. Rev. No.42 of 2021 and by the order passed in Cr. Rev. No.42 of 2021, the case was remitted back and in compliance of the order passed in the said criminal revision vide order dated 17.11.2022; the SDM, Rajmahal in exercise of the power under of CrPC accepted the right of way petition of the first party and ordered for construction of the 10 Ft. wide road after removing obstruction on the road.

4. Being aggrieved by the said order dated 17.11.2022 passed in Cr. Misc. Case No.562 of 2022, the petitioner herein filed criminal revision no.102 of 2022 in the Court of Additional Sessions Judge-I, Rajmahal. But in the said criminal revision no.102 of 2022 the petitioner did not challenge the order dated 12.09.2022 initiating the proceeding under Section 147 of Cr.P.C. in Cr. Misc. Case No.562 of 2022.. The learned Additional Sessions Judge-I, Rajmahal on the basis of the map of the area where dispute existed supplied by the SDM, Rajmahal came to the conclusion that father of the petitioner-who was the revisionist had given consent for construction of the road, of course not under any approved plan. The learned Additional Sessions Judge-I, Rajmahal also considered that disputed land has been acquired by the government as was evident from the bank documents. Since the revisionist has no right to obstruct the road on the land which was acquired by the government and as the report of the revenue authority revealed that the road leading to the village- Lakhipur from NH-80 has been obstructed without any justification by the petitioner herein who was the revisionist before the learned Additional Sessions Judge-I, Rajmahal and as the entire villagers of Lakhipur filed a petition before the SDM, Rajmahal for right of way and no illegality has been committed by the SDM, Rajmahal in passing the impugned order and dismissed the criminal revision. The petitioner never challenged the order passed in Cr. Rev. No.42 of 2021 and thus the said order has reached finality.

5. Learned senior counsel for the petitioner relies upon the judgment of the Hon’ble Patna High Court in the case of Chaturgun Turha and Others vs. Jamadar Mian reported in 1960 SCC OnLine Pat 174 and submits that therein it was observed by the Hon’ble Patna High Court that initiation