SARFUDDIN ALIAS SARFUDDIN MIAN Vs. SABIR THAKUR

JUDGEMENT

(1.) Heard learned counsel for the petitioner, learned counsel for the State as also learned counsel appearing on behalf of Opposite Party No. 1.

(2.) The present application arises out of a proceeding initiated under Section 147 of the Cr. P.C. on a petition preferred by the Opposite Party No. 2. By order dated 16.1.2003 the Executive Magistrate, Chapra after hearing the parties directed the present petitioner not to interfere with the user of the land in question as a passage by Opposite Party No. 1 recording his satisfaction that the same was being so used by Opposite Party No. 1 for the previous more than approximately 35 years. A revision having been preferred against the same by the petitioner, Cr. Rev. No. 66/2003, before the 4th Additional Session Judge, Saran, came to be dismissed on 29.5.2003 affirming the finding of the Executive Magistrate holding that the failure of the Magistrate to record such user within the three months next from the date of report of the police officer was not fatal to the initiation of proceedings.

(3.) Learned counsel for the petitioner has raised a very short question of law in support of the present application. It is submitted that proviso to Section 147(3) of Cr PC would be mandatory in nature before the final orders would have been passed by the Magistrate exercising jurisdiction under Section 147 of the Cr PC. He submits that this satisfaction was the sine qua non for the exercise of the power and in absence of which the order would be bad as being without jurisdiction. He relies upon two judgments of this Court reported in AIR 1955, Patna 265, Tirjogi Narayan Singh and Ors. v. Kamta Prasad and Anr. and 1984 PLJR 629, Binoda Yadav and Ors. v. The State of Bihar and Ors. to submit that in absence of such satisfaction having not been recorded in the order the same is vitiated and is liable to be set aside. The revisional Court would have seriously erred in law by recording that non-compliance of the mandatory provision was not fatal to the case.