Full Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Revision No.1279 of 2011 Guru Govind Singh & Ors. Versus The State of Bihar & Anr. ---------------------------------- For the Petitioner: - B. N. P. Singh, Advocate. For the State: - Dr Rabindra Kumar, A.P.P. -------------------- 2. 12.01.2012 Learned counsel for the petitioners and learned A.P.P. for the State are present. This application is directed against the order dated 29.7.2011 passed by the Sub-Divisional Magistrate, Supaul in a proceeding under Sections 147 of the Code of Criminal Procedure in Misc. Case No. 505/2008 by which the petitioners have been directed to remove obstruction from one Decimal of land of Old Khesara No. 3320 and New Khesara No. 1520. Learned counsel for the petitioners submits that any order under Section 147 of the Code of Criminal Procedure pre-supposes the fact that if there is any obstruction which is directed to be removed, the said obstruction must have been continuing since at least three months prior to the date of filing of the application. Learned counsel submits that in the present case the petition filed by opposite party no. 2 dated 16.12.2008 itself discloses that the obstruction was already in existence and thus there was no question of land being used for any public purpose by way of passage. The 2 prayer was also to acquire the land and make it available for use of passage by the people. Learned counsel submits that even the order impugned had only gone on the presumption that it is the requirement of the people that there be a passage and that is why such order has been passed. Learned counsel submits that the revenue Karamchari, Supaul in his report submitted to the Anchal Adhakari, Supaul dated 20.2.2009 has clearly written that the said passage was not being used from about 8-9 months. Learned counsel submits that on the basis of such findings the power under Section 147 of the Code of Criminal Procedure could not have been exercised since a finding of fact has come that the land was not being used at a passage for the last 8-9 months. Learned counsel for the petitioners relies upon a decision rendered in the case of Md. Sarfuddin Vs. Sabir Thakur reported in 2006 (1) PLJR 190 the relevant being at paragraph no. 6, for the proposition that it is the duty of the Magistrate to give finding to the effect that the right was exercised within three months prior to the date when the Magistrate heard the grievances and took action. He submits that in the present case there is absolutely no discussion on that point and rather in the enquiry made by the concerned local official, it has been found that there is no use of the land as a passage since about 8-9 3 months. Let notice be issued to opposite party no. 2 both under registered cover with A/D as well as under ordinary process for which requisites etc. must be filed within one week from today. List soon after service of notice. During pendency of the application, the order dated 29.7.2011 passed by the Sub-Divisional Magistrate, Supaul in Misc. Case No. 505/2008 shall remain stayed. (Ahsanuddin Amanullah, J.) Anand Kr.