MAHENDRA PRASAD SAO Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) THE petitioner Mahendra Prasad Sao has invoked the inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure for quotients of the impugned order dated 23.7.2003 passed by the Vth Additional Sessions Judge, Giridih in Cr. Rev. No. 40 of 1992 whereby and whereunder the order passed by the Executive Magistrate, Giridih in Case No. 911 of 1984 corresponding to T.R. No. 336 of 1988 of 27.5.1992 in a proceeding under Section 147 of the Code of Criminal Procedure was set aside.

(2.) THE petitioner had presented a written complaint before the Village Sampans on 26.4.1987 stating, inter alia, that a Durga Mandap was situated at village Mandardih where the idol of Goddess Durga used to be installed on every Chaitra month of the year for worship with devotion and on that eve, a fair also used to be organized, attended by people of far away villages. It was further narrated that after completion of Durga Puja the idol of Goddess Durga used to be carried in a procession for its immersion in Packiatad pond passing through Pachamba, pitched road and Jamua road. It was alleged that the members of the opposite party used to show their intention to encroach upon the part of the path way of the procession by displaying lethal weapons and they also used to abuse the public. It was requested to protect the path way of procession from being encroached upon and the right of user of public of the said path be maintained. The petitioner had given Khata No. 72 Plot No. 364 of the land in question which was a Gairmazarua land. The matter was referred to the police and in turn, the local police reported the matter before the S.D.M., Giridih for initiation of a proceeding under Section 144 of Code of Criminal Procedure. Upon consideration, the learned Executive Magistrate found it to be a fit case for a proceeding under section 147 of the Code of Criminal Procedure and accordingly, notices were directed to be issued to the members of the second party who are opposite party herein and both the parties were called upon to show cause.

(3.) AGAINST the said order passed by the Executive Magistrate the members of the opposite party viz. Shim Sao, Dasrath Sao and Kashi Sao preferred Cr. Rev. No. 40 of 1992 and the learned Vth Additional Sessions Judge, Giridih after appraisal of the evidence available on record as produced on behalf of the opposite party found that the Executive Magistrate manifestly committed error by not appreciating the evidence in right perspective and held that the public had right of user and the members of second party/opposite party were restrained from causing any kind of obstruction lover the said land.