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2002 DIGILAW 994 (JHR)

Hrishikesh Shukla v. State Of Jharkhand

2002-09-10

D.N.PRASAD

body2002
ORDER Deoki Nandan Prasad, J. 1. By this application, the petitioner has prayed for quashing the order dated 26-4-2002 passed by the Sessions Judge, Palamau at Daltonganj, in Criminal Revision No. 141 of 2001 whereby and whereunder, the learned Sessions Judge allowed the criminal revision by setting aside the order dated 15-10-2001 passed by the Sub-Divisional Magistrate, Sadar, Daltonganj, in Misc. Case No. 299 of 1999. 2. The short facts giving rise to this application that on the basis of the application filed by the petitioner, a proceeding under Section 147 of the Code of Criminal Procedure (the Code) was initiated and after considering the show cause field on behalf of the parties and also the oral and documentary evidence, the learned Sub-Divisional Magistrate, Sadar, directed the opposite party No. 2 to remove the obstruction from the land in question and the said order was also affirmed in Criminal Revision No. 50 of 2000 by order dated 16-12-2000. It is further claimed that on an incorrect and false report submitted by the police, the proceeding under Section 147 of the Code was dropped by order dated 3-4-2001. Lateron the learned Sub-Divisional Magistrate made spot verification as provided under Section 148 of the Code and by order dated 16-10-2001 directed the opposite party No. 2 to remove the obstructions. Against which the opposite party preferred criminal revision before the Sessions Judge, Palamau, which was allowed by the order impugned, hence this application. 3. The opposite party No. 2 also filed reply claiming therein that the order dated 30-5-2000 was duly complied with by the opposite party No. 2 and thereafter the matter was finally disposed of by order dated 3-4-2001 whereby the proceeding was closed. It is further stated that in compliance of the order dated 30-5-2000, the opposite party No. 2 had completely removed the wall which was the subject matter in dispute. It is further stated that the order dated 15-10-2001 passed by the learned Sub-Divisional Magistrate, Daltonganj, is wholly without jurisdiction and illegal as the proceeding was finally dropped on 3-4-2001, therefore, there was no proceeding under Section 147 of the Code pending at the time. It is further stated that the order dated 15-10-2001 passed by the learned Sub-Divisional Magistrate, Daltonganj, is wholly without jurisdiction and illegal as the proceeding was finally dropped on 3-4-2001, therefore, there was no proceeding under Section 147 of the Code pending at the time. The learned Sessions Judge has rightly allowed the revision, as the subject matter, which has been taken into account by order dated 15-10-2001 is quite different, which is in respect of drainage, which was not the subject matter in dispute in the proceeding initiated under Section 147 of the code rather there was a dispute as regards to the construction of wall which has already been removed by opposite party No. 2 and, as such, this application is fit to be dismissed. 4. Mr. A.K. Sahani, learned counsel appearing on behalf of the petitioner submitted that the Court below committed error in allowing the revision application as the proceeding under Section 147 of the Code was already in continuation and on an incorrect and false report submitted by the local police, the said proceeding was stopped, but the learned Sub-Divisional Magistrate passed the order dated 15-10-2001 after the local inspection as provided under Section 148 of the Code. It is also submitted that the application filed by the petitioner cannot be construed to be a fresh cause of action nor the spot verification made by the Sub-Divisional Magistrate would be construed to be a fresh cause of action rather the proceeding under Section 147 of the Code deemed to be continued and the learned Sub-Divisional Magistrate rightly passed the order directing the removal of the drainage. 5. On the other hand Mr. A.K. Chaturvedi, learned counsel for opposite party No. 2 contended before me that there is no illegality in the order of the Sessions Judge as the proceeding under Section 147 of the Code was already dropped by order dated 3-4-2001 and the learned Sub-Divisional Magistrate after being satisfied from the enquiry report, the said proceeding was dropped as well as the opposite party No. 2 already removed the obstruction of wall which the subject matter of the dispute in a proceeding under Section 147 of the Code which was registered as Misc. Case No. 299 of 1999, and so, actually there was no proceeding under Section 147 of the Code in existence on 15-10-2001, and thus, the learned Sub-Divisional Magistrate Committed error in passing the order afresh in respect of fresh cause of action in respect, of different land in dispute and, therefore, this application is fit to be dismissed. 6. From going through the record, it is apparent that the proceeding under Section 147 of the Code was already dropped as back as on 3-4-2001 and that order was passed on the basis of the enquiry report on being satisfied that the obstruction of wall has already been removed. This fact has also been admitted by opposite party No. 2 in his reply to the petition as well as one petition has also been filed on 30-3-2001 before the Sub-Divisional Magistrate, Sadar, Daltonganj stating therein that the obstruction of wall has already been removed on 31-12-2000 and thereafter the proceeding was dropped on 3-4-2001. Thus, obviously there was no proceeding in existence on 15-10-2001 for the same land in dispute. Moreover the order dated 15-10-2001 passed by the learned Sub- Divisional Magistrate indicates about the drainage in respect of flow of water running between the Angan of the second party which was not the subject matter of Misc. Case No. 299 of 1999. The Magistrate cannot take up the matter which is not the subject matter of the dispute/proceeding and the Court passed the order without the jurisdiction which cannot be sustained in the eye of law. Hence, the learned Sub-Divisional Magistrate apparently committed error in passing the order dated 15-10-2001. The learned Sessions Judge, Palamau has rightly allowed the revision application by setting aside the said order. 7. In the result, I find that the order passed by the Sessions Judge, Palamau at Daltonganj in Criminal Revision No. 141 of 2001 does not require to be interfered with and this application, being devoid of merit, is dismissed. 8. Needless to say that the Court below is at liberty to start a fresh proceeding against the parties if the Court is satisfied from any report or otherwise about existence of breach of peace regarding any alleged right of user of any land or water.