GURU GOVIND SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard learned counsel for the parties.

(2.) Sub Divisional Magistrate, Supaul in purported exercise of power under Sec. 147 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) by the impugned order dated 29.07.2011 passed in Miscellaneous Case No. 505 of 2008 has directed the petitioners to remove obstruction from 1 decimal of land of Old Khesara No. 3320, New Khesara No. 1520 under Mouza-Baruari, Thana No. 204, of Khata No. 706 (699 New).

(3.) The short point, which has been taken on behalf of the petitioners to assail the impugned order is that existence of apprehension of breach of peace is condition precedent for exercising power under Sec. 147 of the Code. It has been additionally submitted that it had never been the case of the contesting Opposite party No.2 that the right of use of land in question was being exercised within three months next before the initiation of the proceeding or receipt under Sub-section (1) of Sec. 147 of the information leading to institution of the enquiry. It has been contended that on the contrary the records suggest that the Opposite party No.2 had ceased exercising the said right of use of land much before three months preceding the receipt of information leading to institution of the enquiry. To bolster this contention, it has been argued that there is no finding recorded by the learned Magistrate to the effect that the said right was being exercised within three months next before the receipt of information while exercising his power under Sec. 147 of the Code, which is also one of the essential conditions for exercise of such power.