MOSTT KABUTARI DEVI Vs. STATE OF BIHAR

JUDGEMENT

(1.) I have heard Counsel for the parties.

(2.) By this application, the petitioner has prayed for setting aside the order dated 5.9.1997 passed by the Executive Magistrate in case No. 353 (M) 1996 ordering removal of obstruction in exercise of his power under Section 147, Cr PC. It appears that firstly a proceeding under Section 144, Cr PC, was initiated and then the same was converted into a proceeding under Section 145, Cr PC and the parties pursuant to the notice filed their written statements. Thereafter upon a petition filed by Opposite Party No. 1, the proceeding was converted into a proceeding under Section 147, Cr PC, and the learned Magistrate at the same time directed the petitioner to remove the obstruction.

(3.) Learned Counsel for the petitioner submitted that the order passed by the learned Magistrate directing the petitioner to remove the obstruction is wholly without jurisdiction inasmuch as that the Opposite Party No. 2 had not established his claim by evidence and the learned Magistrate merely on the basis of the written-statements filed by the parties in 145 proceedings and after considering the submissions passed the order impugned.