Research › Search › Judgment

Gauhati High Court · body

2008 DIGILAW 297 (GAU)

Dhirendra Kumar Ghosh v. Satyendra Kumar Paul

2008-04-24

H.BARUAH

body2008
JUDGMENT H. Baruah, J. 1. Sri Dhirendra Kumar Ghosh, the revision Petitioner herein as the first party filed an application before the SDM, Karimganj to draw up a proceeding under Section 145, Code of Criminal Procedure The learned SDM, Karimganj accordingly called for a police report in respect of the allegation brought against the Respondents herein arrayed as second party members. Having received a report from the police and being satisfied thereby the learned SDM drew up a proceeding under Section 145, Code of Criminal Procedure which was however ultimately converted to a proceeding under Section147 of the Code of Criminal Procedure as per order of the Revisional Court (Sessions Court). The case was remanded back and the proceeding was converted into a proceeding under Section 147from 145, Code of Criminal Procedure vide order dated 14.7.1997 passed CR No. 63(3) of 1997. The learned trial Court proceeded to hear the proceeding and recorded the evidence. At the conclusion of the trial, the learned Magistrate passed an order an order directing removal of the obstruction that may exist in the disputed way. 2. Being aggrieved by the order passed by the learned SDM, Karimganj a revision was filed before the learned Sessions Judge being revision No. 32(2)/2000. The learned Sessions Judge after hearing the parties at length set aside the order passed by the learned SDM, Karimganj. 3. The-revision Petitioner feeling aggrieved with the judgment and order filed this present revision challenging its legality and correctness. 4. We have heard Mr. N. Dhar, the learned Counsel for the revision Petitioner and also Mr. GM. Paul the learned Counsel for the opposite party. 5. Mr. N. Dhar, the learned Counsel for the revision Petitioner at the very out set of his argument submits that the impugned order passed by the revisional Court cannot stand since the order is found violative of substantive provision of law as incorporated under Section 147(3) of the Code. It is submitted that the provision of the Code empowers the Executive Magistrates to pass an order for removal of the obstruction in the path of the user. The view adopted by the learned revisional Court that the Magistrate does not have any jurisdiction under the provision of Section 147(3) of the Code is not sustained. It is submitted that the provision of the Code empowers the Executive Magistrates to pass an order for removal of the obstruction in the path of the user. The view adopted by the learned revisional Court that the Magistrate does not have any jurisdiction under the provision of Section 147(3) of the Code is not sustained. In this context it would be appropriate to the Court to place the relevant law provided under Section 147(3) of the Code which reads as under: (3) If it appears to such Magistrate that such rights exist, he may make an order prohibiting any interference with the exercise of such right, including, in a proper case, an order for removal of any obstruction in the exercise of any such right: Provided that no such order shall be made where the right is exercisable at all times of the year, unless such right has been exercised within three months next before the receipt under Sub-section (1) of the report of the police officer or other information leading to the institution of the inquiry, or where the right is exercisable only at particular seasons or on particular occasions, unless the right has been exercised during the last of such seasons or on the last of such occasions before such receipt. 6. In the context of the provision of law as incorporated in Sub-section 3 of Section 147 of the Code, it would be appropriate for this Court to place the relevant portion of the judgment impugned by this revision petition, which runs as follows: Vide the impugned order the learned Court had directed concerned police officer to remove the blockage of bamboo fencing, planting of trees, but the provision of Section 147, Code of Criminal Procedure does not envisage any provision for execution of the order. Disobedience of the order is punishable under Section 188, IPC. So here in this impugned order, the direction to Police Officer to remove blockage of the path is considered to be out of jurisdiction. Some High Courts' opinion is that the Magistrate dealing provision under Section 147, Code of Criminal Procedure could only make a prohibitory order in a negative from forbidding doing of an act, but it would not make any order directing doing of any or particular act, that is by giving a mandatory injunction AIR 1965 17. Some High Courts' opinion is that the Magistrate dealing provision under Section 147, Code of Criminal Procedure could only make a prohibitory order in a negative from forbidding doing of an act, but it would not make any order directing doing of any or particular act, that is by giving a mandatory injunction AIR 1965 17. Considering all these aspects, I come to the conclusion that the impugned order was not passed property, legally and regularly. Accordingly, it is set aside. The case is sent back to the learned Court below to inquire a fresh in order to come to a definite finding whether there is existence of way path alleged to use by opposite first party, if the parties are interested at all. In the result, the revision petition is allowed. 7. So, as per the wisdom of the revisional Court, the Executive Magistrate while passing an order under Sub-section 3 of Section 147 of the Code does not have jurisdiction to order removal of such obstruction. 8. Mr. G.M. Paul, the learned Counsel for the Respondents while arguing the case, in view of substantive provisions of law as provided under Section 147 of the Code has not raised a strong objection to the submission advanced by the learned Counsel for the revision Petitioner. Mr. Paul, the learned Counsel for the Respondents, however, has not denied the jurisdiction of the learned Executive Magistrate in the context of removal of obstruction from the road/path. It is submitted by him that learned Magistrate failed to interpret the law as provided in the Code and thus arrived at a finding which is however, cannot be appreciated in terms of law. A revisional Court cannot act as an appellate Court and it would not be justifiable on the part of the revisional Court to make a survey of all the evidences recorded by an inferior Court. Its duty is to see its legality, correctness etc. of the order, sentence etc. passed by an inferior Court by requiring all the records therefrom. 9. Apparently the order passed by the learned revisional Court is found to have been passed not in conformity with the provision of Sub-section 3 of Section 147, Code of Criminal Procedure Therefore, the submission advanced by Mr. N. Dhar, that the order is incorrect and illegal has no substance. On the other hand, the submission advanced by Mr. 9. Apparently the order passed by the learned revisional Court is found to have been passed not in conformity with the provision of Sub-section 3 of Section 147, Code of Criminal Procedure Therefore, the submission advanced by Mr. N. Dhar, that the order is incorrect and illegal has no substance. On the other hand, the submission advanced by Mr. G.M. Paul that the conversion of the proceeding from under Sections 145 to 147, Code of Criminal Procedure is not appropriate and the Court does not have the jurisdiction to do so is not sustainable at this stage. The conversion so made by the learned revisional Court was at the instance of the Respondents. No revision was filed as against the finding of the revisional court in the context of conversion of the proceeding from Sections 145 to 147, Code of Criminal Procedure therefore the submission that the proceeding under Section 147 at this stage is not tenable is not acceptable. This Court does not find any force in the submission of Mr. G.M. Paul since no revision/appeal was preferred before the appropriate forum as against the order. This Court is very much concerned with the order impugned by this revision. It is the definite case of the revisional Petitioner that the learned Sessions Judge (the revisional Court) when failed to adhere to the substantive provision of law while passing the judgment the same cannot stand in the eye of law and it is liable to be set aside and quashed. 10. Having considered the substantive law provided under Section 147(3) of the Code, the impugned judgment rendered by the Revisional Court (Sessions Court) is found erroneous and illegal. It does not conform to the law as provided. In the result this revision is allowed. The impugned judgment is set aside and-quashed. LCRs be sent down.