Ramashish Mahto And Ors vs State Of Bihar And Anr
2023 Latest Caselaw 5217 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                  CRIMINAL MISCELLANEOUS No.41429 of 2015
                     Arising Out of PS. Case No.- Year-1111 Thana- District-
     ======================================================

1. Ramashish Mahto S/o Late Jubi Mahto

2. Umanath Mahto

3. Bishwanath Mahto

4. Dinesh Kumar All Are Sons Of Ramashish Mahto

5. Ranjan Devi W/O Late Ram Babu Mahto All Resident Of Village- Basdewpur Sarai, P.O.- Karnaul, P.S.- Sahebhanj, District- Muzaffarpur ... ... Petitioner/s Versus

1. The State Of Bihar

2. Rajendra Mahto S/o Jageshwar Mahto, Resident of village- Basdewpur Sarai, P.O.- Karnaul, P.S.- Sahebganj, District- Muzaffarpur.

... ... Opposite Party/s ====================================================== Appearance :

For the Petitioner/s : Mr. Sanjay Kumar @ S.K., Advocate For the Opposite Party/s : Smt. Anuradha Singh, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE JITENDRA KUMAR ORAL JUDGMENT Date : 10-10-2023

The present petition under section 482 Cr.P.C. has

been preferred by the petitioners impugning the order dated

02.04.2014 passed by the Ld. Additional Sessions Judge-III,

Muzaffarpur in Criminal Revision No. 124 of 2012 wherein

order dated 03.04.2012 passed by Ld. Executive Magistrate in

criminal proceeding No. 1389 of 2005 (Tr. No. 115 of 2012)

under Section 147 Cr.P.C. has been upheld.

2. Relevant facts, as emerging from the record, is

that respondent no.2 herein Rajendra Mahto filed one

application before Ld. Sub-Divisional Magistrate, Muzaffarpur

West against all the petitioners herein for initiation of Patna High Court CR. MISC. No.41429 of 2015 dt.10-10-2023

proceeding under Section 147 Cr.P.C. and remove obstruction

on road. It was averred in the petition that Respondent no.2

Rajendra Mahto has a house in Khesra No. 1591 (New Khesra

No.1594) and to the west of his house, house of all the

petitioners herein is situated and to the east of the house of the

petitioners, the petitioners have sahan land and on this sahan

land there is private rasta (way) measuring 10 feet wide x 43

feet long for about 50 years and this rasta is used by the

Respondent no.2 to approach the main road for about 35 years.

However, the petitioners have made cottage obstructing the

rasta of the Respondent no.2.

3. In view of the aforesaid application, Ld. Sub-

Divisional Magistrate initiated proceeding under Section 147

Cr.P.C. directing both the parties to put in written statement of

their respective claims. After written statement of both the

parties, evidence on behalf of both the parties was also recorded

by Ld. Sub-Divisional Magistrate. After consideration of the

material on record, Ld. Sub-Divisional Magistrate found that

disputed land bearing Khata No. 164, new Khesra No. 1594,

measuring 9 decimal belongs to the 2nd parties who are

petitioners herein, but as per oral evidences of the witnesses, to

the east of the house of the 2 nd parties, who are petitioners Patna High Court CR. MISC. No.41429 of 2015 dt.10-10-2023

herein, over the land bearing new Khesra No. 1594, there is one

rasta measuring 10feet wide x 43 feet long which is used by the

first party, who is respondent no.2 herein, and others to

approach main road. However, the same has been obstructed by

the 2nd parties who are petitioners herein by constructing cottage

and other work over it.

4. On the basis of the aforesaid finding, Ld. Sub-

Divisional Magistrate has opined that giving 10 feet wide road

on a private land does not appear to be just and proper. Hence,

she declares only 5 feet wide rasta over the land in issue to be

used as rasta by the first party (Respondent no.2 herein) and

others and restrained the 2nd parties (Petitioners herein) from

creating any obstruction. The order was also directed to be

operative with immediate effect till it is set aside by competent

Court.

5. Being aggrieved by the aforesaid order dated

03.04.2012 passed by Ld. Sub-Divisional Magistrate in

Criminal Proceeding bearing No. 1389 of 2005, the 2 nd parties

(Petitioners herein) preferred Criminal Revision bearing No.

124 of 2012 before the Sessions Court, Muzaffarpur. However,

the criminal revision was dismissed by Additional Sessions

Judge-III, Muzafarpur holding that there is no reason to interfere Patna High Court CR. MISC. No.41429 of 2015 dt.10-10-2023

in the order passed by the Ld. Sub-Divisional Magistrate.

6. It also transpires from the record that the

petitioners herein, who are 2nd parties before Ld. Executive

Magistrate have filed a Civil Suit on 02.05.2014 bearing Title

Suit No. 513 of 2014 against the Respondent no.2 who was first

party before the Ld. Sub-Divisional Magistrate for declaration

of title and confirmation of possession, as well as for restraining

the respondent no.2 from taking any forceful step over the land

in question which is subject matter of criminal proceeding

before the Ld. Sub-Divisional Magistrate. He has also filed

interim application before Ld. Civil Court for interim injunction

against the respondent no.2 herein. However, Court of Ld. Sub

Judge-XI, Muzaffarpur vide order dated 04.11.2016 has

dismissed their interim application for injunction.

7. Ld. counsel for the petitioners submits that the

impugned order has been passed by Ld. Executive Magistrate

without any jurisdiction because the pre-requisites for passing

the impugned order are not fulfilled. He further submits that it is

purely civil dispute between the parties. Civil suit is also

pending in the competent Civil Court and the criminal

proceeding before Ld. Executive Magistrate is not maintainable

as it is an abuse of the process of court and liable to be quashed Patna High Court CR. MISC. No.41429 of 2015 dt.10-10-2023

under Section 482 Cr.P.C.

8. However, Ld. A.P.P. for the State and Ld.

Counsel for the Respondent No.2 defend the impugned order

submitting that there is no illegality or infirmity in the impugned

order and as per the facts and circumstances of the case the

impugned order has been passed by Ld. Executive Magistrate to

maintain peace and tranquility.

9. However, before I proceed to consider the

rival submission of the parties, it is imperative to know the

ambit and scope of Section 147 Cr.P.C.

10. Section 147 Cr. P.C. reads as follows:-

"147. Dispute concerning right of use of land or water- (1) Whenever an Executive Magistrate is satisfied, from the report of a police officer or upon other information, that a dispute likely to cause a breach of the peace exists regarding any alleged right of user of any land or water within his local jurisdiction, whether such right be claimed as an easement of otherwise, he shall make an order in writing, stating the grounds of his being so satisfied and requiring the parties concerned in such dispute to attend his Court in person or by pleader on a specified date and time and to put in written statement of their respective claims.

Explanation-The expression "land or water" has be meaning given to it in Sub-section (2) of Sec.14. (2) The Magistrate shall then peruse the statements so put in, her the parties, receive all such evidence, as may be produced by them respectively, consider the effect of such evidence, take such further evidence, if any, as he thinks necessary and, if possible decide whether such right exists and the provisions of Section 145 shall, as far as may be, apply in the case of such inquiry.

(3) If it appears to such Magistrate that such rights exist, he may make an order prohibiting any interference Patna High Court CR. MISC. No.41429 of 2015 dt.10-10-2023

with the exercise of such right, including, in a proper case, an order for the removal of any obstruction in the exercise of any such right;

Provided that no such order shall be made where the right is exercisable at all times, of the year, unless such right has been exercised within three months next before the receipt under Sub-section (1) of the report of a police officer or other information leading to the institution of the inquiry, or where the right is exercisable only at particular seasons or on particular occasions, unless the right has been exercised during the last of such seasons or on the last of such occasions before such receipt.

(4) When in any proceeding commenced under Subsection (1) of Section 145 the Magistrate finds that the dispute is as regards an alleged right of user of land or water, he may, after recording his reasons, continue with the proceedings as if they had been commenced under Sub- section (1);

And when in any proceedings commenced under Subsection (1) the Magistrate finds that the dispute should be dealt with under Section 145, he may, after recording his reasons, continue with the proceedings as if they had been commenced under Sub-section (1) of Section 145."

11. Explaining the ambit and scope of Section 147

Cr. P.C., Hon'ble Orissa High Court in Biswanath Mohanty

& Anr. Vs. Kailash Ch. Mohanty & Ors., ( 2013 SCC

OnLine Ori 439) has observed in para 6 that Section 147 of the

Code deals with apprehension of breach of peace when dispute

is raised concerning rights of user of land or water. If the

Executive Magistrate is satisfied from the report of a police

officer or upon other information that a dispute likely to cause a

breach of peace exists regarding any alleged right of user of any

land or water, he shall make an order in writing stating the Patna High Court CR. MISC. No.41429 of 2015 dt.10-10-2023

grounds of his satisfaction and shall direct the parties concerned

in such dispute to attend his Court and put in written statements

by the parties and the Executive Magistrate shall peruse the

same, receive all such evidence as may be produced and then

decide whether such right exists. In making such enquiry, the

provisions of Sec. 145 of the Code as far as possible may be

applied. If he would find that any such right exists, he may

make an order prohibiting any interference with the exercise of

such right, including, in a proper case, an order for the removal

of any obstruction in the exercise of any such right.

12. Hon'ble Orissa High Court further observed

in same para that the power conferred on a Magistrate under this

section is intended to preserve public peace and not to determine

the right of parties like a Civil Court.

13. Hon'ble Himachal Pradesh High Court in

Balak Ram Vs. Rasik Singh & Ors. (2008 SCC OnLine HP

99) held in para 12 that first the Magistrate has to satisfy himself

either from the police report or upon other information and such

satisfaction must be subjective, if there are good reasons for the

Magistrate not being satisfied the satisfaction cannot be thrust

upon him by any means. However, the Magistrate's satisfaction

must be based upon some material placed before him and he is Patna High Court CR. MISC. No.41429 of 2015 dt.10-10-2023

under obligation to draw a formal order recording his

satisfaction, or such material.

14. Hon'ble Himachal Pradesh High Court

further held in para 13 of Balak Ram case (supra) that neither

the Sub-Divisional Magistrate had recorded his subjective

satisfaction nor there was any reference to the existence of the

breach of peace which is sine qua non.

15. Hon'ble Jharkhand High Court in para 11 of

Maheshwar Pratap Singh Vs. The State of Jharkhand (2008

SCC OnLine Jhar 463) has held that it is manifest from the

above provisions that the Magistrate has only to decide as to

whether such right of user does exist in favour of either of the

parties claiming the right where claim is made by way of

easement or otherwise, and whether such right has been used

within three months next before the receipt of information

leading to institution of the inquiry. The Magistrate is not called

upon to decide the title of any party. From the impugned Order,

it appears that neither the Magistrate nor the Revisional Court

has taken into consideration the essential aspects required under

Section 147 of the Cr.PC and on the other hand have-felt

prompted to decide up in the title of the second party over the

land in dispute on the basis of the sale deed.

Patna High Court CR. MISC. No.41429 of 2015 dt.10-10-2023

16. Hon'ble Orissa High Court in para 7 of Siba

Prasad Moharana Vs. Dhadi Nayak & Ors., (2002 SCC

OnLine Ori 185) has held that proceeding under Section 147,

Cr.P.C. can be initiated when a dispute exists with regard to any

alleged right of user of any land which is likely to cause breach

of peace. The powers conferred on a Magistrate in this Section

is intended to preserve public peace and not to determine the

right of parties like a Civil Court.

17. Hon'ble Madhya Pradesh High Court in

State of Madhya Pradesh Vs. Phodal Hira & Ors., (1970

SCC OnLine MP 44) has observed in para 12 that under

Section 147 the immediate right of user of any land or water as

an easement or otherwise is decided. Hon'ble High Court

further held in para 16 that an order under Section 147 of the Cr

PC prohibiting the interference can only be made when the

aggrieved party comes within 3 months or if the exercise is

seasonal when the aggrieved party has exercised his right in the

last season. The Magistrate has also to decide whether such a

right exists in a summary manner. Under Section 147(1) the

Magistrate has to receive evidence as may be produced by the

parties, consider the effect of that evidence and take such further

evidence as he thinks necessary and decide whether such a right Patna High Court CR. MISC. No.41429 of 2015 dt.10-10-2023

exists.

18. Hon'ble Gauhati High Court in para 8 of

Smt. Bhubaneswari Goswami Vs. Kaliram Burman (1959

SCC OnLine Gau 4) explaining the ambit and scope of Section

147 has held that Section 147 Cr. P.C. deals with disputes

regarding any alleged right of user on any land or water.

Hon'ble Gauhati High Court further held in para 9 that if the

right to use the land is claimed as an incident of ownership and

it is alleged that a dispute has arisen as regards such user, it will

really be a dispute relating to the land itself, and not in respect

of a right in the land. The petitioner was claiming that the land

belonged to him. He may have been using it in a particular

manner, namely, by utilising it as a passage for the purpose of

repairing his house. But there was no legal bar to his using it

otherwise than as a passage. He could have, according to his

claim, used the land in any manner he liked. So he was not

really claiming merely a right of user in the land but a right of

ownership, or in other words, it can be said that he was using

the land as he was the owner of the land, and not in the exercise

of any limited right of user.

19. Hon'ble Gauhati High Court further held in

para 10 that the use of the word 'otherwise' only extends the Patna High Court CR. MISC. No.41429 of 2015 dt.10-10-2023

operation of the section to cases where a person may not have,

strictly speaking, a right of easement, but he may acquire the

right of user by grant or by custom. But nonetheless it has to be

a right distinct from the use of the land as an owner. The cases

where somebody trespasses on the land of others by making

construction, may be covered by S. 145, Cr. P.C. The petitioner

may in that case say that he has been in possession of the land as

its owner and by making construction over the land, the other

party has dispossessed him and if such an interference of the

possession of the first party is likely to result in a breach of the

peace, S. 145, Cr. P.C. will be attracted. Section 147 on the other

hand will be available to a petitioner when he claims certain

right of user in the land -- a right different from that of

ownership, over his own land.

20. Hon'ble Calcutta High Court in para 8 of Sri

Sukumar Das & Anr., Vs. Bholanath Shil & Anr. (2016 SCC

OnLine Cal 10028) held in para 10 that a proceeding under

Section 147, Cr.P.C. relates to apprehension of breach of peace

only in respect of dispute between the parties concerning to use

of land or water. Executive Magistrate has been authorised to

invoke jurisdiction under Section 147, Cr.P.C. only for the

purpose of preventing breach of peace. In any way, learned Patna High Court CR. MISC. No.41429 of 2015 dt.10-10-2023

Magistrate has not been authorised under Section 147, Cr.P.C. to

assume concurrent jurisdiction with competent civil Court for

adjudication on the question of right, title, interest and

possession over the land or water of the parties. As such, in the

instant case, during pendency of civil suit between the parties

and subsisting injunction order in the form of 'status quo'

learned Magistrate erroneously passed restraining order with

observation in favour of the petitioners approving their

easement right over the disputed passage.

21. Hon'ble Calcutta High Court further held in

para 11 that Section 147, Cr.P.C. does not provide any

permanent relief in connection with property dispute between

the parties to a lis. By that Section a Magistrate is not authorised

for final adjudication over a dispute relating to property between

the parties but competent civil Court is authorised to do so.

22. Hon'ble Patna High Court in Chhatradhari

Choudhary Vs. The State of Bihar & Ors. (2015 SCC

OnLine Pat 1644) has held that if the petitioner has a right of

passage or right to utilize the passage he may approach before

the Court of competent jurisdiction even individually or in

representative capacity for declaration of public right.

23. Hon'ble Patna High Court in para 6 of Patna High Court CR. MISC. No.41429 of 2015 dt.10-10-2023

Ratichandra Mandal Vs. State of Bihar ( 2017 Cri. L.J.

3861) held that upon close scrutiny of Section 147 of the Code,

it is easily discernible that if an Executive Magistrate is satisfied

from the report of a Police Officer or upon other information

that a dispute exists which is likely to cause breach of peace

regarding any alleged right of user including the right of

"easement", he can ask the parties concerned to such dispute to

attend his Court and to put in written statements, on their

respective claims. The mandatory requirement of initiation of a

proceeding under Section 147 of the Code is of satisfaction of

the Executive Magistrate of existence of a dispute likely to

cause breach of peace with respect to the right of user of land

within his local limits and of such satisfaction being recorded in

writing.

24. Hon'ble Patna High Court further held in

para 13 that it has to be kept in mind, however, that the purpose

of conferring such power and jurisdiction upon Executive

Magistrates, under Section 147 of the Code and other similar

provisions, is only to prevent breach of peace and in a situation

where he is satisfied that wrongful act of a person is likely to

cause prejudice of peace, he may direct that person to desist

from doing such act. Such orders are, undoubtedly, temporary in Patna High Court CR. MISC. No.41429 of 2015 dt.10-10-2023

nature till the rights of the parties are finally adjudicated upon

by a competent court. The provisions are essentially not

intended to confer any power on the Magistrates to decide

disputes relating to respective rights of the parties.

25. Hon'ble Patna High Court in Guru Govind

Singh Vs. State of Bihar ( 2017 Cri. L.J. 3307) has held in

para 6 that a plain reading of the said provision makes it

abundantly clear that before passing an order under Section 147

of the Code, it is mandatory for the Executive Magistrate to

record his satisfaction that there exists a dispute, which is likely

to cause a breach of peace regarding any alleged right of user of

any land or water within his local jurisdiction. Unless such

satisfaction is reached and recorded, the Magistrate cannot make

an order under Section 147 of the Code. In most unambiguous

terms, the Section provides that the Magistrate will be required

to state the grounds of his being so satisfied that there exists a

dispute likely to cause a breach of peace while making an order

under Section 147 of the Code. No such satisfaction has been

recorded by the Magistrate in the Impugned order. The

impugned order, therefore, cannot be sustained being without

jurisdiction.

26. Hon'ble Patna High Court further held in Patna High Court CR. MISC. No.41429 of 2015 dt.10-10-2023

para 8 that while making an order under Section 147 of the

Code, the Executive Magistrate, in addition to recording his

satisfaction as contemplated under sub-section (1) of Section

147 of the Code that there exists a dispute likely to cause breach

of peace must also record that right of user has been exercised

within a period of three months next before receipt of report of a

police officer or other information leading to institution of the

enquiry as contemplated under the proviso to sub-section (3) of

Section 147 of the Code.

27. Hon'ble Jharkhand High Court in para 11 of

Supriya Sen & Ors. Vs. State of Jharkhand & Ors. ( 2013

Cri. L.J. 1750) has held that in the application filed before the

SDM, Sadar Ranchi for initiating a proceeding under Section

147 Cr.P.C., there does not seem to be any averment that the

dispute with respect to same land (8′ length × 36′ width), which

was there in between the parties, is likely to cause breach of

peace nor such statement is there in the police report.

28. Hon'ble Jharkhand High Court further held

in para 12 that under the circumstances, it can be said that no

material was there before the Magistrate to come to the

conclusion that the dispute was likely to cause breach of peace.

Still the Magistrate in its order has recorded that the dispute is Patna High Court CR. MISC. No.41429 of 2015 dt.10-10-2023

likely to cause breach of peace between the parties and,

therefore, that finding/observation is without any basis and,

hence, order passed by the Magistrate initiating a proceeding

under Section 147 Cr.P.C. seems to be quite bad.

29. Hon'ble Jharkhand High Court further held

in para 13 that for initiating a proceeding under Section 147

Cr.P.C. following two essential ingredients should be there:-

(i) there should be a bonafide dispute regarding

user of any land or water;

(ii) and that dispute is likely to cause breach of

peace.

30. Hon'ble Calcutta High Court in para 7 of

Nitish Das & Ors. Vs. State of West Bengal & Anr. ( 2009

SCC OnLine Cal 1525) has held that a plain reading of the

aforesaid provisions makes it abundantly clear to assume

jurisdiction under section 147 of the Code, the Executive

Magistrate has to satisfy first either from police report or from

any other information whether a dispute likely to cause a breach

of peace regarding any alleged right of user of any land or water

does exist or not and if he satisfies that a dispute is likely to

cause a breach of peace do exist then in that case it is open to

him to proceed further but before proceeding further it is Patna High Court CR. MISC. No.41429 of 2015 dt.10-10-2023

mandatory he may must record the grounds of his satisfaction. It

is also the mandate of law that no prohibitory order can be made

without first deciding the question about the existence of such

right of user of a party over the disputed property.

31. Hon'ble Jharkhand High Court in

Maheshwar Pratap Singh Vs. State of Jharkhand & Ors.,

[2008 CRI. L.J. (NOC) 814 (Jhar.)] has held in para 9 that it is

manifest from the above provisions that the Magistrate has only

to decide as to whether such right of user does exist in favour of

either of the parties claiming the right where claim is made by

way of easement or otherwise, and whether such right has been

used within three months next before the receipt of information

leading to institution of the inquiry. The Magistrate is not called

upon to decide the title of any party. From the impugned Order,

it appears that neither the Magistrate nor the Revisional Court

has taken into consideration the essential aspects required under

Section 147 of the Cr.PC and on the other hand have-felt

prompted to decide up in the title of the second party over the

land in dispute on the basis of the sale deed.

32. Hon'ble Patna High Court in para 6 of Md.

Sarfuddin @ Sarfuddin Mian Vs. Sabir Thakur & Anr.

(2005 SCC OnLine Pat 939) has observed that from a bare Patna High Court CR. MISC. No.41429 of 2015 dt.10-10-2023

reading of the proviso it is apparent that there is a vital interdict

on the powers and the jurisdiction of the Magistrate and passing

any final order under section 147 Cr. P.C. unless he be satisfied

that within three months next of the report of the police officer,

the right as alleged had been exercised. The proviso would open

with the words "no such order shall be made". This court in the

judgment reported in A.I.R. 1955 Patna 265 relied upon by the

petitioner would have noticed that where the right claimed is

one which was exercisable at all times of the year, which is the

case presently, it was the duty of the learned Magistrate to give a

finding to the effect that this right was exercised within three

months prior to the date when the learned Magistrate heard the

grievances and took action on the allegation by directing an

enquiry by the police. The court would have recorded simply

that this would be mandatory requirement of law.

33. Hon'ble Delhi High Court in para 10 of

Ravinder Singh & Anr. Vs. Gian Chand Panwar & Anr.

(2010 SCC OnLine Del 4212) has held that it was not open for

the respondent to initiate a parallel criminal proceeding before

the SDM under Section 147 Cr.P.C. over the same issue

claiming similar relief, after having filed a civil suit in this

regard. Such proceedings would not be maintainable, inasmuch Patna High Court CR. MISC. No.41429 of 2015 dt.10-10-2023

as, it would result in multiplicity of proceedings. There was also

possibility of these different forums taking conflicting view,

regarding the same subject matter.

34. As such, it emerges from the statutory

provisions of Section 147 Cr. P.C. and the case laws as referred

to above, that Section 147 can be invoked by an Executive

Magistrate subject to the following conditions:-

(a) There is a dispute between the parties regarding

any alleged right of user of any land or water.

(b) The Executive Magistrate is satisfied as per

police report or otherwise that such dispute is like to cause

breach of peace. Such satisfaction must be recorded in writing

based on stated grounds.

35. It also emerges that when proceeding under

Section 147 Cr. P.C. is initiated by Executive Magistrate, he is

required to conduct enquiry into the existence of alleged rights

of the party by way of inviting written statements and evidence

of the parties concerned. When it is found that such right exists

regarding easement or otherwise, the Executive Magistrate is

empowered to make order prohibiting any interference in the

exercise of such right and an order for removal of any

obstruction in the exercise of such right.

Patna High Court CR. MISC. No.41429 of 2015 dt.10-10-2023

36. It also emerges that the jurisdiction under

Section 147 is bestowed upon Executive Magistrate for

maintaining public order and peace and the orders passed by the

Executive Magistrate are temporary in nature and continue till

the rights of the parties are adjudicated by competent Civil

Court. When the Civil Court is seized of the matter, in regard to

the same land or water, proceeding under Section 147 cannot be

initiated by Executive Magistrate. The parties can agitate their

claims before Civil Court for appropriate remedy including

interim relief. If proceeding under Section 147 Cr.P.C. is

pending before Executive Magistrate and subsequently any

party moves Civil Court, in such situation also parallel

proceeding before Executive Magistrate is not permissible

because in such situation, proceeding before Executive

Magistrate would be meaningless and unnecessary multiplicity

of litigation. After all, orders of Civil Court are binding upon

Executive Magistrates.

37. It further manifests that apprehension of breach

of peace is sine qua non for invoking jurisdiction under Section

147 Cr. P.C. by Ld. Executive Magistrate. Maintaining public

order and tranquility is subject matter of Chapter X of Cr. P.C.

under which Section 147 falls. Concept of public order and Patna High Court CR. MISC. No.41429 of 2015 dt.10-10-2023

peace is much wider concept than instances of tension between

few individuals arising out of private disputes between them in

regard to landed property. Public order and peace affects public

at large. If the effect of any dispute is confined merely to few

individuals who are parties to the dispute, such dispute cannot

give any apprehension of breach of public order and peace.

Such private civil disputes comes within exclusive jurisdiction

of Civil Court. Similarly violation of penal laws by few

individuals are also beyond contemplation of Chapter X of Cr.

P.C. Such violation at most be treated as law and order problem,

but cannot be treated as basis for apprehension of breach of

public order and peace. Concept of public order and peace is

much wider concept than that of problem of law and order. Stray

instances of violation of penal laws by few individuals are

required to be dealt with under our legal framework by

prosecution of such individuals in criminal Courts. All law and

order problems cannot be treated as breach of public order and

peace unless it affects the public at large, like riots, affray or

public unrest. Extraordinary jurisdiction under Chapter X of the

Cr. P.C. has been provided to Executive Magistrates to maintain

public order and peace by nipping such breach in the bud.

Hence, the Executive Magistrates are expected to invoke their Patna High Court CR. MISC. No.41429 of 2015 dt.10-10-2023

jurisdiction only in cases where there is apprehension of breach

of public order and peace. They should refrain from exceeding

their jurisdiction and encroach upon jurisdiction of civil and

criminal Courts. Such colourable exercise of jurisdiction by

Executive Magistrates would be against the object and spirit of

Chapter X Cr. P.C. and it would render Civil and Criminal

Courts redundant and the people would get harassed by illegal

and unnecessary proceedings. In our legal framework, power

and jurisdiction are defined for different instrumentalities of the

state and no instrumentality is expected to exceed its jurisdiction

and encroach upon that of others.

38. Coming to the case at hand, I find that the

Respondent No.2 had approached the Executive Magistrate for

initiating proceeding under Section 147 Cr.P.C. with application

stating therein that over the land in question there is rasta for

about 50 years and the same is being used by the Respondent

No.2 for 35 years to approach main road and this land in

question is landed property of the 2nd parties, who are petitioners

herein, adjoining their house and as per allegation, the 2 nd

parties are creating obstruction to Respondent No.2 by putting

cottage over the rasta. On his application, criminal proceeding

under Section 147 Cr.P.C. was initiated by Ld. Executive Patna High Court CR. MISC. No.41429 of 2015 dt.10-10-2023

Magistrate and after perusal of written statements of their

respective claims and evidence, it was found by Ld. Executive

Magistrate that over the land in question there was one rasta

measuring 10feet wide x 43 feet long which was used by first

party, who is Respondent No.2 herein, and others to approach

the main road. Hence, he declares 5feet wide x 43 feet long rasta

over the land to be used by the first party (Respondent No.2

herein) and other. Obstruction was also directed to be removed

if any.

39. It transpires from the aforesaid facts and

circumstances that Ld. Executive Magistrate has not recorded

any satisfaction regarding apprehension of breach of peace, nor

is any material on record to show that any person other than the

parties to the dispute are affected by the dispute. No public at

large appear to be interested or affected in the dispute. On the

basis of such facts and circumstances there was no occasion of

any apprehension of breach of peace affecting public at large

and there was no occasion for the Executive Magistrate to

invoke such jurisdiction under Section 147 Cr.P.C.. The parties

to the dispute had remedy to approach Civil Court in regard to

their easementary or other rights. In fact the 2 nd parties, who are

petitioners herein, have already filed a civil suit on 02.05.2014 Patna High Court CR. MISC. No.41429 of 2015 dt.10-10-2023

for declaration of their title and injunction against the first party

(Respondent No.2 herein). In such situation, there is no

propriety or justification for continuation of criminal proceeding

before Executive Magistrate.

40. In view of the aforesaid facts and

circumstances of the case, the order dated 02.04.2014 passed by

Ld. Additional Sessions Judge-III, Muzaffarpur in Cr. Revision

No. 124 of 2012 and order dated 03.04.2012 passed by Ld.

Executive Magistrate in Cr. Proceeding No. 1389 of 2005 (Tr.

No. 115 of 2012) are not sustainable in the eye of law, hence,

same are accordingly quashed allowing the present petition.

(Jitendra Kumar, J.) ravishankar/-

AFR/NAFR                AFR
CAV DATE                N.A.
Uploading Date          17.10.2023
Transmission Date       17.10.2023