Advocates:
['Jyoti Ranjan Jha', '', 'Dhananjai Kumar Singh', 'MANISH KUMARAPP', '', 'Binay Kumar', 'Md Najmul Hodda']

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Revision No.841 of 2014

Arising Out of PS.Case No. -null Year- null Thana -null District- MUNGER

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1. Ratichandra Mandal, Son of Late Dhuri Mandal, Resident of Village - Durmatta,

P.S. - Harpur, Distt. - Munger

.... .... Petitioner

Versus

1. The State of Bihar

2. Raj Kumar Mandal @ Bhikho Mandal, Son of Desho Mandal, Resident of

Village - Durmatta, P.S. - Harpur, Distt. - Munger.

.... .... Respondents

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Appearance :

For the Petitioner/s : Mr. Jyoti Ranjan Jha

For the Respondent/s : Mr. Manish Kumar

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CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN

SINGH

ORAL JUDGMENT

Date: 15-03-2017

Heard learned Counsel for the parties concerned.

2. By the order, which is impugned in the present

criminal revision application, learned Additional Sessions

Judge I, Munger, has held that in exercise of power under

Section 147 of the Code of Criminal Procedure, 1973

(hereinafter referred to as "the Code"), the Sub Divisional

Magistrate/Executive Magistrate, Tarapur, Munger, did not

have power to decide dispute over right of easement, which

can only be decided by a civil court. This is precisely the

question involved in the present application raised by the

petitioner, in whose favour, the Sub Divisional Magistrate,

Tarapur, Munger, had earlier passed an order upholding his

right of easement over the disputed land.

Patna High Court CR. REV. No.841 of 2014 dt.15-03-2017

2/11

3. The facts of the case, briefly said, are thus:

(i) The petitioner had filed an application under

Section 107 of the Code in the Court of learned Sub Divisional

Magistrate, Tarapur, Munger, for restraining Opposite Party

No. 2 from taking any unlawful step in respect of obstruction

created by him in connection with the disputed land described

as khata no. 125, khesra no. 397, area 4 decimals, which,

accordingly to the petitioner, was being used as the only way

for his ingress and aggress from his house to the main road

for a fairly long time and was used as such even by his

ancestors.

(ii) On 02.12.2005, the petitioner filed an

application before the learned Executive Magistrate, Tarapur,

Munger, for converting the said case under Section 107 of the

Code to a proceeding under Section 147 of the Code. The Sub

Divisional Magistrate, Tarapur, Munger, by an order, dated

16.06.2009, allowed the petition filed by the petitioner under

Section 147 of the Code and thereby prohibited the Opposite

Party No. 2 from creating any obstruction against the

petitioner's right of his user and asked him to abstain from

raising any structure on the said land. From the said order,

dated 16.06.2009, which has been brought on record by way

of Annexure-2 to the present application, it appears that both

the parties were heard, who had adduced evidence before the

Patna High Court CR. REV. No.841 of 2014 dt.15-03-2017

3/11

Court of Sub Divisional Magistrate, Tarapur, Munger, both

oral and documentary. The Opposite Party No. 2 took specific

stand that he held title and possession over the disputed land

and the petitioner did not have any right of easement over

the said land.

(iii) It also transpires from the said order that the

Sub Divisional Magistrate, Tarapur, Munger, had sought for a

report from the Police. In their enquiry report, the Police had

mentioned existence of a path over the land in question,

which was being attempted to be stopped by raising a wall.

The Police had reported apprehension of breach of peace

because of the obstruction being raised by the Opposite Party

No. 2. In a subsequent report, the Police reported that the

said land was being used as path by the petitioner. In its third

report also, while requesting initiation of a p