LAWS(JHAR)-2001-10-14

PIKLAL MAHTO Vs. STATE OF JHARKHAND

Decided On October 15, 2001
Piklal Mahto Appellant
V/S
STATE OF JHARKHAND Respondents

JUDGEMENT

(1.) After hearing the learned counsel for the parties, I find that the order impugned in this petition suffers from a patent error of law apparent on the face of the order itself. The allegation is that the respondent No. 5 raised construction during the pendency of the proceedings under Section 144 of the Code of Criminal Procedure, thereby inviting action under Section 188 of the Indian Penal Code. The learned Executive Magistrate has recorded in the impugned order dated 20.6.2001 that the circle inspector had sent a report confirming the construction, but the said report is silent on the point as to when the construction had taken place. Thus, the impugned order itself does not say as to whether the construction was raised during the pendency of the proceedings under Section 144 of the Code of Criminal Procedure, or prior to the initiation of the proceedings under Section 144. Cr P.C. the period when the construction was raised is very relevant for the disposal of this petition. However, strangely enough, after making the aforesaid observation, the learned executive Magistrate dismissed the application filed by the petitioner, which is not only wholly erroneous, but is patently illegal and cannot be sustained. If the learned Magistrate found that the construction had in fact, been raised, the only dispute was about the date when it was so raised. It should have been inquired into, but without doing so, he straightway dismissed the application without assigning any reasons therefor.

(2.) FOR the reasons aforesaid, this peti tion is allowed: the impugned order dated 20.6.2001 passed by the respondent No. 2 is set aside. The matter is remitted to the court below for re -consideration in the light of the aforesaid observations.