Patna High Court
Md. Sarfuddin @ Sarfuddin Mian vs Sabir Thakur And Anr. on 18 November, 2005
Equivalent citations: 2006(3)BLJR2394
Author: Navin Sinha
Bench: Navin Sinha
ORDER Navin Sinha, J.
1. Heard learned counsel for the petitioner, learned counsel for the State as also learned counsel appearing on behalf of Opposite Party No. 1.
2. The present application arises out of a proceeding initiated under Section 147 of the Cr. P.C. on a petition preferred by the Opposite Party No. 2. By order dated 16.1.2003 the Executive Magistrate, Chapra after hearing the parties directed the present petitioner not to interfere with the user of the land in question as a passage by Opposite Party No. 1 recording his satisfaction that the same was being so used by Opposite Party No. 1 for the previous more than approximately 35 years. A revision having been preferred against the same by the petitioner, Cr. Rev. No. 66/2003, before the 4th Additional Session Judge, Saran, came to be dismissed on 29.5.2003 affirming the finding of the Executive Magistrate holding that the failure of the Magistrate to record such user within the three months next from the date of report of the police officer was not fatal to the initiation of proceedings.
3. Learned counsel for the petitioner has raised a very short question of law in support of the present application. It is submitted that proviso to Section 147(3) of Cr PC would be mandatory in nature before the final orders would have been passed by the Magistrate exercising jurisdiction under Section 147 of the Cr PC. He submits that this satisfaction was the sine qua non for the exercise of the power and in absence of which the order would be bad as being without jurisdiction. He relies upon two judgments of this Court reported in AIR 1955, Patna 265, Tirjogi Narayan Singh and Ors. v. Kamta Prasad and Anr. and 1984 PLJR 629, Binoda Yadav and Ors. v. The State of Bihar and Ors. to submit that in absence of such satisfaction having not been recorded in the order the same is vitiated and is liable to be set aside. The revisional Court would have seriously erred in law by recording that non-compliance of the mandatory provision was not fatal to the case.
4. Learned counsel for the Opposite Party No. 1 from the order of the Magistrate sought to submit that the petitioner was not bonafide in perusing the matter. He would have been unnecessarily trying to delay the proceeding despite imposition of costs and that the present application was a part of the same process and the present application was, therefore, fit to be dismissed.
5. This Court would consider it proper to set out Section 147(3) in its entirety which is quoted below.
If it appears to such Magistrate that such right 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 the year, unless such right has been exercised within three months next before the receipt under Sub-section (1) of the report of 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.
6. From a bare 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 PC 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 AIR, 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.
7. Similar view would have been taken in 1984, PLJR, 629 relied upon by the petitioner. This Court would only consider it appropriate to quote para 15 of the judgment which would in consequence of reaffirming the view of AIR 1955 Pat.
The proviso to Sub-section (3) of Section 147 of the Code is of mandatory nature and in absence of any finding whatsoever, that will strike at the root of the jurisdiction for passing a valid and legal order under Section 147 of the Code. Simply a finding that Opposite Party No. 2 had a right of user is not sufficient in itself from the legal validity point of view unless there is a finding regarding the period of user as contemplated under the proviso to Sub-section (3) of Section 117 of the Code.
8. In the result the present application has to be allowed. The impugned orders are set aside and the matter is remanded to the Court of Magistrate concerned to proceed afresh in accordance with law.
9. This application is, accordingly, allowed.