Patna High Court
Sharda Devi vs The State Of Bihar Through The District ... on 18 September, 2025
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.331 of 2025
Arising Out of PS. Case No.- Year-0 Thana- District- Patna
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Sharda Devi Wife of Kanhaiya Prasad Gupta Resident of Village-Bhuawal,
PO- Chilhar, PS -Dinara, District -Rohtas, presently residing at Bairiya near
Patliputra Bus Terminal, PS- Samachak, District- Patna
... ... Petitioner/s
Versus
1. The State Of Bihar Through The District Magistrate, Patna Bihar
2. The Senior Superintendent Of Police, Patna Bihar
3. The Sub-Divisional Magistrate, Patna City, Patna Bihar
4. The Executive Magistrate, Patna City, Patna Bihar
5. The Circle Officer, Patna Sadar, Patna Bihar
6. The S.H.O. Gopalpur Police Station, Patna Bihar
7. Rina Kumari Wife Of Late Rakesh Prasad Singh Resident Of Village And
P.O.- Ghostwa, P.S.- Silaw, Distt.-NALANDA At Present- Principal
Samarpan School Illahibag Near Bairiya Bus Stand, Police Station- Sampat
Chak, Distt.- Patna
8. Shivjee Kumar Son Of Late Mahant Singh Resident Of Mohalla- Samarpan
Colony, Illahibag Near Bairiya South Of Patliputra Bus Stand, Police
Station- Sampat Chak, Gopalpur, Distt.- Patna
9. Amrendra Kumar Singh Son Of Shivsagar Singh Resident Of Village-
Salempur, P.S.- Sakurabad, Distt.- Jehanabad
10. Aman Kumar Son Of Sadanand Singh Resident Of Mohalla- Rohini Nagar,
South Of Patliputra Bus Stand Bairiya, P.S.- Sampatchak, Distt.- Patna
11. Prabhu Giri Son Of Bhola Giri Resident Of Village- Bari Pahari, P.S.-
Agamkuan, Distt.- Patna
12. Manoj Singh Son Of Baleshwar Singh Resident Of Village- Daulatpur,
Gandhi Tola, P.S.- Caurichak, Distt.-PATNA
13. Vikash Kumar Son Of Ramanand Prasad Resident Of Village- Dhawalpura,
Karmalichak, P.S.- Sampatchak, Distt.- Patna
... ... Respondent/s
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Appearance :
Patna High Court CR. WJC No.331 of 2025 dt.18-09-2025
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For the Petitioner/s : Mr. Jitendra Prasad Singh, Sr. Advocate
Mr.Binod Kumar Sinha, Advocate
Mr. Ajay Kumar Prasad, Advocate
Mr. Prabhat Ranjan Singh, Advocate
For the State : Mr. Pankaj Kumar Singh, AC to Ex-G.A.9
For the Private respondents: Mr. Parth Gaurav, Advocate
Mr. Akash Raj, Advocate
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CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
ORAL JUDGMENT
Date : 18-09-2025
The petitioner has filed the present writ petition
seeking following relief(s):-
"A. For direction to the Respondent Ist Set to
provide protection to the life and property of
the petitioner which is in danger at the
hands of private respondents 2nd Set who
illegally without authority making
obstruction at the time of construction of the
residential house of the petitioner and
threatened for dire consequences.
B. For quashing the order dated 11.11.2024
passed by the Sub-Divisional Magistrate,
Patna City in Misc. Case No. 709 of 2024 by
which he has converted the proceeding
Under Section 166 of the Bharatiya Nyaya
Sanhita, 2023 (147 of the Cr.P.C.) from
Section 163 of the B.N.S. (144 of the Cr.P.C.)
without valid dispute concerning right of use
of land and without police report which is
mandatory requirement under the law.
C. For grant of any other relief and relief as
Your Lordships may deem fit and proper in
Patna High Court CR. WJC No.331 of 2025 dt.18-09-2025
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view of the fact and circumstances of the
present case."
2. Heard learned senior counsel for the petitioner as
well as learned counsel for the State and learned counsel for the
private respondents.
3. The brief facts of the case is that the petitioner is
purchaser of a plot having area of 1600 sq. feet of Mauza -
Pahari, Police Station - Alamganj, Sub-registry office, Patna
City, Thana No. 14, Khata No. 205, Survey Plot Nos. 1455 and
1456. The private respondents filed a case before learned Sub-
divisional Magistrate, Patna City under Section 163 of BNSS
making allegation that the petitioner has been constructing a
boundary wall and obstructing the right of way of public.
Thereafter, Misc. Case No. 709 of 2024 was instituted.
However, while the proceeding has been going on in
miscellaneous case, the learned S.D.M. called for a spot
verification report from the Executive Magistrate. Though the
report has not been received, yet the learned S.D.M. vide order
dated 11.11.2024, converted the proceeding of Misc. Case No.
709 of 2024 from Section 163 of BNSS to Section 166 of
BNSS. This order is under challenge before this Court.
4. Learned senior counsel submits that the private
Patna High Court CR. WJC No.331 of 2025 dt.18-09-2025
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respondents have been claiming 16 feet wide road which is
about 2 km long closed to the purchased plot of the petitioner
which is part of Survey Plot Nos. 1455 and 1456 but neither in
the sale deeds of the private respondents nor in the sale deed of
the petitioner, there is mention of any such road. The learned
S.D.M. did not consider this fact while ordering for conversion
of the proceeding from 163 BNSS to 166 BNSS. The learned
S.D.M. entirely went with the report of Circle Officer and the
police official and did not even adhere to his own order. He did
not wait for the report of the Executive Magistrate and in undue
haste converted the proceeding into 166 BNSS. Learned senior
counsel further submits that the private respondents are claiming
easementary rights over the land of the petitioner which is
denied by her and on this disputed issue, they should file civil
suit before the court of competent jurisdiction and even on this
point the proceeding under Section 166 BNSS is not
maintainable. Thus, learned senior counsel submits that the
impugned order dated 11.11.2024 is not sustainable and the
same be set aside.
5. On the other hand, learned counsel appearing on
behalf of private respondents vehemently contends that there is
no infirmity in the impugned order. Learned counsel submits
Patna High Court CR. WJC No.331 of 2025 dt.18-09-2025
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that admittedly the petitioner is purchaser of 1600 sq. feet of
land but the demarcation report and site report of Anchal Amin
and Revenue Officer show that the petitioner has been making
construction over 1687 sq. feet of land. The private respondents
are the neighbours of the petitioner and they have been using the
land adjoining to the land of the petitioner for commenting as a
Rasta. As the petitioner has been trying to make construction on
more than her purchased land, she started obstructing the way
(Rasta) of the private respondents and general public. This fact
is also apparent from the sale deed of the petitioner as the sale
deed mentioned the land as commercial vacant land with 2 feet
high boundary wall. Learned counsel further submits that the
petitioner, after demolishing 2 feet high boundary wall, has
encroached the land beyond the said boundary wall and thus
obstructed the way/road of 16 feet used by the private
respondents.
6. Learned counsel further submits that the order
passed by the learned S.D.M. converting the proceeding from
Section 163 BNSS to 166 BNSS does not suffer from any
infirmity as the learned S.D.M., after being satisfied with the
report and documents placed by the parties, recorded a finding
that the matter needed evidence and it was not possible to
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conclude the same within the limited time span of proceeding
under Section 163 BNSS. Therefore, recording his satisfaction,
the learned S.D.M. rightly converted the proceeding from 163
BNSS to 166 BNSS. Learned counsel further submits that,
thereafter, the report of Executive Magistrate has also come on
record and if the petitioner is so aggrieved by non-submission of
the report of Executive Magistrate, as the same has come on
record, the petitioner should join the proceeding before the
learned S.D.M. along with her document and establish her
claim.
7. I have given my thoughtful consideration to the
rival submission of the parties and perused the record. The
petitioner is aggrieved by the conversion of proceeding which
was initiated under Section 163 BNSS/144 CrPC into 166
BNSS/147 CrPC. Section 166 BNSS reads as under:-
"166. 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
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easement or 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 an advocate on a
specified date and time and to put in written
statements of their respective claims.
Explanation.-For the purposes of this sub-
section, the expression "land or water" has
the meaning given to it in sub-section (2) of
section 164.
(2) The Magistrate shall peruse the
statements so put in, hear 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 164 shall, so
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 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
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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 proceedings commenced
under sub-section (1) of section 164 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
sub-section (1) the Magistrate finds that the
dispute should be dealt with under section
164, he may, after recording his reasons,
continue with the proceedings as if they had
been commenced under sub-section (1) of
section 164."
8. From the aforesaid provision it is clear that the
learned Magistrate can initiate a proceeding under Section 166
BNSS on the report of a police officer or upon other
information. In the present case, the report of the police officer
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was already on record. Thereafter, the report of the Circle
Officer was also considered by the learned S.D.M.
Subsequently, the report of Executive Magistrate, earlier sought
for by the learned S.D.M., also came on record though after
passing of the order for converting the proceeding into 166
BNSS. As the learned S.D.M. proceeded on the basis of
material available before him finding it to be sufficient, I do not
think any illegality or impropriety has been committed by the
learned S.D.M. while passing the order dated 11.11.2024.
9. If there is claim of the private respondents about
existence of 16 feet wide road and 2 km long Rasta which they
have been using and denial of this claim by the petitioner on the
ground of her sale deed not showing any such Rasta in its
boundary, the course open to the parties is to agitate their claim
before the learned S.D.M.
10. Therefore, finding no infirmity in the order dated
11.11.2024passed by learned S.D.M., Patna City, the said order is affirmed. The parties are directed to approach the learned S.D.M. with documents in support of their contention and the learned S.D.M. is directed to consider the contention of the parties and pass a reasoned order within three months from the date of receipt/production of a copy of this order.
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11. Accordingly, the present writ petition stands disposed of.
(Arun Kumar Jha, J) DKS/-
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