SATYA NARAYAN MANDAL Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) This application under Article 226 of the Constitution of India has been filed for quashing the order dated 23.4.2004 passed in Cr. Revision No. 39/2003, whereby and whereunder the 1st Additional Sessions Judge, Dumka dismissed the revision application preferred by the petitioner and thereby affirmed the order dated 15.3.2003 passed by the Executive Magistrate, Dumka in T.R. Case No. 51/2002 in a proceeding under Section 147, Cr.P.C.

(2.) Facts leading to the filing of this application are that the respondent No. 2 filed a complaint in the Court of learned Sub-Divisional Magistrate, Dumka praying therein for drawing a proceeding under Section 147, Cr.P.C. on the ground that plot Nos. 169, 173 and 174 appertaining to Jamabandi No. 83 of Mouja Asanbani are the ancestral land of the respondent No. 2 and the petitioner is the uncle of respondent No. 2. Further case of the respondent No. 2 is that a family arrangement took place about 40 years ago in between ancestors of the parties and they possess the lands separately including aforesaid plot and the ancestors of respondent No. 2 have possessing the western part of the aforesaid plot. It was further alleged in the petition filed before the learned Sub-Divisional Magistrate, Dumka, that both the parties have left a gali of 9' x 200' on the said plot and out of the said portion 4.5' x 200' was left by the respondent No. 2 on his portion, whereas 4.5.' x 200' was left in the portion retained and possessed by the petitioner and on that basis the respondent No. 2 claimed that since he has been using that lane left on the portion of the petitioner for last 40 years, as such an order Section 147, Cr PC may be passed. It was alleged by the respondent No. 2 in his petition that the petitioner was' digging the ground for giving a wall in the said gali and thus the petitioner is obstructing his easementry right. The learned Sub-Divisional Magistrate, Dumka got the matter enquired by a Circle Officer and on the basis of report a proceeding under Section 145, Cr PC was initiated and notice was issued to the petitioner to show cause. The petitioner appeared and filed his show cause and he took a different stand that proceeding under Section 145, Cr PC was not maintainable and after filing of the show cause both the sides produced their evidence and after scrutinizing the evidence of the parties and documents produced therein, the learned Executive Magistrate passed an order and learned Magistrate further ordered the petitioner to remove the wall constructed in gali and make it as previously so that no obstruction is caused to any person in movement. Against the aforesaid order of the learned Executive Magistrate, petitioner preferred a Cr. Revision, which was also dismissed by a detailed order.

(3.) The only point that has been taken in this application is that there was no compliance of clause 3 of Section 147 and there is no finding on this point and there must be a finding that right of user exists and that such right has been exercised within three months next before the receipt of the information of breach. In this connection, my attention was, drawn to para 4 of the judgment, reported in 1987 BBCJ 809, which reads as follows :-