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2000 DIGILAW 1348 (PAT)

Rama Shankar Singh v. State Of Bihar

2000-12-20

B.N.SINGH

body2000
Judgment B.N.Singh "Neelam", J. 1. This application is so filed by the petitioners Ramashankar Singh and others figuring as members of the second party in a proceeding under Section 147 of the Code of Criminal Procedure challenging the order so passed under Section 147 (3) of the Cr PC in case number 239 (M)/ 95/Tr. 25/97 by the learned Executive Magistrate, Buxar, a copy of which is filed marked as Annexure-3, by which the petitioners were so directed to remove the obstruction in the exercise of the right of the user so existing in favour of respondent number 2, namely, Subhash Kumar Singh and the other villagers vide its order, dated 18.8.1997 and also the order so passed by the learned revisional Court in criminal revision case bearing number 89 of 1997, dated 27.8.1997, a copy of which is filed marked as Annexure 4, by which the order so passed by the Court of the first instance, dated 18.8.1997 is upheld and the criminal revision so preferred by the present petitioners (members of the second party) is dismissed. 2. Heard the learned Additional Public Prosecutor representing the State with that of the learned counsel representing respondent number 2, namely, Subhash Kumar Singh, who figured as member of the first party in the said 147, Cr PC proceedings. 3. 2. Heard the learned Additional Public Prosecutor representing the State with that of the learned counsel representing respondent number 2, namely, Subhash Kumar Singh, who figured as member of the first party in the said 147, Cr PC proceedings. 3. On behalf of the petitioners, in short, it is pointed out that in the back-ground of the facts and circumstances the learned Court below had rather erred in initiating a proceeding under Section 147, Cr PC and, in this connection, particularly, by drawing attention to the petition so filed by the members of the first party figuring here as respondent No. 2 on 19.11.1994, a copy of which is filed marked as Annexure-1, an attempt is made as to impress upon that by the plain reading of the contents of the said petition, it would transpire that respondent No. 2 had apprehended breach of peace in the hands of the present petitioners for the use of his own land and the breach of peace was so apprehended because of the present petitioners being upon as to open the doors and windows towards the land of respondent No. 2 and, in such circumstance, initiation of proceedings under Section 147, Cr PC is in itself bad in law and further more, without observing due process of law, the learned Executive Magistrate while passing order under Section 147(3) of the Cr PC directed the present petitioners as to remove obstructions and, furthermore, the learned revisional Court mechanically without applying its judicious mind affirmed the order so passed by the Court of the first instance, i.e. the learned Executive Magistrate. All the points so taken as good grounds for quashing the orders of the learned Executive Magistrate and the learned revisional Court (annexures 3 and 4) are pressed into service. In support of his, this contention that the orders under challenge are liable to be set aside, in the background of the facts and circumstances of the case, the learned counsel for the petitioners has also banked upon a reported case 1968 PLJR 382 (Feku Paswan and others v. Shibu Choudhary and others). In support of his, this contention that the orders under challenge are liable to be set aside, in the background of the facts and circumstances of the case, the learned counsel for the petitioners has also banked upon a reported case 1968 PLJR 382 (Feku Paswan and others v. Shibu Choudhary and others). It is, in this context, submitted that the right of the user as contemplated in this section covers cases distinct from the user of the land as an owner and where a person claims enjoyment of some right of his own land and that right is obstructed or disputed in such case the proper proceeding would have been as to proceed under Section 145, Cr PC instead Section 147, Cr PC and in that light, the present proceedings under Section 147, Cr PC so initiated and final order so passed on 16.8.1997 being also affirmed by the revisional Court can well be said to be uncalled for and the orders under challenge, thus, require interference which may be quashed. 4. The learned counsel appearing for respondent No. 2 who figured as member of the first party in the said proceeding has, on the other hand, submitted that there is nothing wrong in the impugned order. 4. The learned counsel appearing for respondent No. 2 who figured as member of the first party in the said proceeding has, on the other hand, submitted that there is nothing wrong in the impugned order. It is also submitted that the petition so filed by respondent No. 2 on 19.11.1994 addressed to the Sub-Divisional Magistrate, Buxar, might not have been healthly worded but in the prayer portion it has been specifically indicated as to initiate proceeding under Section 147, Cr PC and the learned Court below before proceeding with the matter has observed due process of law and the preliminary inquiry is so held prior to passing of the final order under Section 147 (3) of the Cr PC and also the parties were directed to show cause; witnesses were so examined even the Anchal Amin deputed as to given the clear topography of the site which was the bone of contention between the parties and after being satisfied that there was likelihood of apprehension of breach of peace so existing and also being satisfied that exercise of such right of the use of the drain existed not only to the present respondent No. 2 but to the other villagers having adjoining house such order for removal of obstruction was so passed and, in that light, the orders under challenge on no account, as submitted, can be said to be aribitrary, unwarranted or cryptic. In this connection, the learned counsel for respondent No. 2 has read the relevant portion of the show-cause being filed by the present petitioners figuring as member of the second party in the said proceeding which, as submitted, has clarified the position with regard to the obstruction so put by the present petitioners relating to the flow of water through the drain being used not only by respondent No. 2 but by other village as well. The Circle Officers report, it is pointed out, with that of the Anchal Amins report, are dealt with even by the revisional Court prior to dismissing the criminal revision petition so filed by the present petitioners and the. learned Executive Magistrate has, thus, come to the conclusion with regard to the present petitioner putting a block relating to the normal flow of the water from the drainage which was used as thoroughfare even by the villagers. learned Executive Magistrate has, thus, come to the conclusion with regard to the present petitioner putting a block relating to the normal flow of the water from the drainage which was used as thoroughfare even by the villagers. It is also submitted that it is on the basis of the reports with that of the evidence of the witnesses so examined that such order was so passed which does not require any interference and rightly the revisional Court had dismissed the criminal revision petition and since the same party, i.e. the petitioners were completely debarred under the provisions of Sections 397(3) and 399(3) of the Cr PC , as to prefer criminal revision before this Court, it is in the garb of Articles 226/227 of the Constitution that this application is so filed, that too not even opting to file an application under Section 482, Cr PC if there was any clear abuse of the process of the Court of otherwise to secure the ends of justice. On behalf of respondent No. 2, it is also submitted that since it appeared prima facie to the learned Executive Magistrate with regard to the exercise of such right existing relating to the use of the said drain for the outlet of the water by respondent No. 2 along with other villagers that order prohibiting interference was so pased that too apprehending breach of peace in the hands of the present petitioners. The reported case so cited on behalf of the petitioner, it is also pointed out, is quite distinguishable which, as submitted, would appear by going through the show cause so filed by the parties in course of the proceeding under Section 147, Cr PC and also by going through the final order so passed which reflected with regard to the use of the said drainage for outlet of the water not only by respondent No. 2 alone but by the other villagers. Lastly, it is also submitted that in the instant case, the right of the user claimed appeared to exist in the hands of respondent No. 2 along with other villagers which was not even strictly to be proved because effect of user was enough as to put the matter under the provision of Section 147 of the Cr PC and, thus, after passing preliminary orders being satisfied observing all the provision so contained under Section 147 (3) of the Cr PC final order was passed being affirmed by the revisional Court which, thus, does not require any interference and on no account in the present circumstance the same can be said, in any way, to be violative of the provisions of Article 14 of the Constitution, as claimed by the petitioners. 5. On the same line, the argument is so advanced on behalf of the State represented by the learned APP for dismissing this writ petition so filed. 6. After hearing the learned counsel for the petitioners, the learned APP representing respondent No. 1 and the learned counsel representing respondent No. 2, I have carefully gone through the orders under challenge (Annexures 3 and 4) with that of the contents of the other annexures so filed. I filed that there is much of substance in the argument so advanced on behalf of the respondents that the orders under challenge do not require any interference and the reported case so cited is distinguishable, in the background of the facts and circumstances of the present case. The learned Court below had found the user whose right was so existing not to respondent No. 2 alone but to the other villagers which is so apparent also by going through the orders so passed by the revisional Court, dated 27.8.1987 and if it appeared to the learned Court below with regard to the obstruction so put in the hands of the present petitioners, in my considered opinion, the learned Court below was perfectly justified as to give directions for the removal of such obstruction and, that way, since the writ petition so filed has no leg to stand, the same is liable to be dismissed which is, thus, hereby dismissed. However, before parting with, it is made clear that the person aggrieved, if so advised, has naturally the opportunity as to knock the door of the competent Civil Court, for redressal. 7. However, before parting with, it is made clear that the person aggrieved, if so advised, has naturally the opportunity as to knock the door of the competent Civil Court, for redressal. 7. The matter stands, accordingly, disposed of.