JUDGMENT
Hari Shankar Prasad, J.
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 Ist 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 PC.
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 PC 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 and 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 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 :–
“4. During the enquiry, the Ist party examined 5 witnesses and the 2nd party examined 4 witnesses and they also got some papers exhibited on their behalf. The learned Magistrate, take into consideration the evidences produced by the parties found that the 2nd party had obstructed six feet wide lane between S.P. Nos. 703 and 704 to its north and S.P. No. 705 to its south by constructing a brick wall and there by obstructing the right of user of the Ist party and others and he directed the 2nd party to immediately remove the obstruction so that the Ist party and others may use it as they have been using since after 1960 and he further ordered that the 2nd party will have, no connection with the lane between S.P. Nos. 669 and 670 on the side and 703 on the other.”
4. Reliance was also placed upon Binoga Yadav v. State of Bihar, 1984 PLJR 629, wherein it has been held that a proceeding under Section 147 is distinguishable from that under Section 145, whereas in the later case, it is the actual possession, which is for adjudication and in the former the question for decision will be the right of user which may be over any plot of land belonging to some one else and thus that plot not being directly involved for adjudication with reference to ownership or possession. A proceeding under Section 147 involves a dispute as to the right of user either by easement or otherwise and in this connection, my attention was drawn to para 9 of the judgment, which is quoted herein below :–
“9. I find sufficient force in this contention. The dispute with reference to plot number is of no importance in a proceeding under Section 147 of the Code because the scope of a proceeding under Section 147 of the Code is distinguishable from that under Section 145 of the Code. In the later case, it is the actual possession, which is for adjudication. In the case of former the question for consideration and decision will be the right of user, which may be over any plot of land belonging to some one else and thus that plot not being directly involved for adjudication with reference to ownership or possession. The dispute involved in a proceeding under Section 147 of the Code, as stated above, is the right of user either by easement or otherwise.”
5. It was further held that Clause 3 of Section 147 are mandatory and absence of finding as required by proviso to Section 147(3) will render an order under Section 147 invalid. From perusal of impugned order, I do not find that any such finding has been given in the order of the learned Executive Magistrate.
6. On the other hand, learned Counsel appearing for the respondent No. 2, submitted that there is such a finding and he placed reliance in the case of Kailash Verma v. Punjab State Civil Supplies Corporation and Anr., reported in 2005 (1) East Cr C 219 (SC) : 2005 (1) Crimes 189, which is not applicable in this case.
7. On perusal of order passed by the learned Executive Magistrate in T.R. Case No. 51/2002 and in the order passed in Cr. Revision No. 39/2003, there is no finding as to the compliance of proviso to Clause (3) of Section 147, Cr PC and, therefore, this application is allowed and both the aforesaid orders are hereby set aside and matter is remitted back to the learned Court of Sub-Divisional Magistrate, Dumka for passing a fresh order in accordance with law.
