RAMA SHANKAR SINGH Vs. STATE OF BIHAR

JUDGEMENT

(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.) 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/s. 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.