Patna High Court - Orders
Dular Chand Sao & Ors vs The State Of Bihar & Ors on 8 December, 2011
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.47172 of 2008
1. Dular Chand Sao
2. Vinay Kumar
3. Navin Kumar
4. Bindu Bhushan Kumar
5. Shyam Kumar
6. Shobha Kumar
--- --- ---- Petitioners
Versus
1. The State of Bihar
2. Shyam Bihari Sao
3. Premchand Sao
---- ----- ------Opposite Parties
-------
3 8-12-2011This is an application for quashing the order dated 15.9.2008 passed by Additional Sessions Judge, F.T.C. III, Patna in Cri. Revision No. 124 of 2008/18 of 2008 and also the order dated 31.1.2008 passed by Executive Magistrate, Danapur in Case no. 225(M) of 2003.
In brief, apprehension of breach of peace reported to S.D.M., Danapur in between the petitioners and father of opposite party nos. 2 and 3 as he then was alive but it appeared to learned S.D.M to convert the proceeding under section 107 into one under section 147 Cr.P.C. as the dispute for which apprehension of breach of peace was existing was concerning 'Rasta' over a peace of land 7' x 200' of survey plot nos. 30 and 31 under khata no. 142, Tauzi no. 5 to 97 of Mauza Jamsaut Mahal, Sikandarpur, P.S.Sahpur, District Patna.
2It is admitted fact of the parties that both the parties purchased land from the same transferor on same day. Father of Opposite party nos.2 and 3 purchased 30 decimals of land of plot nos. 30 and 31 while petitioners purchased 6 and ¼ decimal of land of the same plot mentioning 7' Rasta in one of the boundaries.
Parties filed their W.S., thereafter adduced witnesses and hearing them, learned Executive Magistrate to whom the case was transferred by S.D.M. decided the matter that there was no existence of any Rasta through the land of opposite party nos. 2 and 3 which was claim of petitioners. The order was challenged in revision but same is dismissed. Now prayer is to quash both the orders that of the Revisional Court vide Cri. Revision No. 124/08/18/08 passed by Additional Sessions Judge, F.T.C. 3, Patna and vide Case No. 225M of 2003, Trial no. 18/04 Mahendra Sao vs Dular Chandra Sao under section 147 Cr.P.C. by Sri Sanjiv Singh, Executive Magistrate, Danapur.
Certain grounds are taken for consideration under the provision of section 482 Cr.P.C. to quash the orders in question and points are following:
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(i) Non-consideration of oral and documentary evidence including Panchaiti and Panchnama.
(ii) Report of Anchal Adhikari.
(iii) Having no jurisdiction by learned S.D.M., Danapur to convert a proceeding under section 107 Cr.P.C. into one under section 147 Cr.P.C.
As about first point, nothing could be pointed out as which part of oral evidence adduced on behalf of petitioners has not been considered by the Executive Magistrate, Danapur. As about documents Panchnama is shown executed in the case which is not an admissible document as Panches have no right (power) to decide the land dispute making any observation.
As about second point, the report of Anchal Adhikari, no doubt the Anchal Adhikari was directed to give a report after inspection of the disputed land but there is no any provision in the Code of Criminal Procedure for calling for such report in which also existence of any Rasta is missing, only suggestion is there about facilitating Rasta to petitioners which never can be accepted for existence of Rasta.
As about third point, strange enough that 4 apprehension of breach of peace was reported by petitioners basing which Officer Incharge of Shahpur Police Station requested the learned S.D.M., Danapur for initiating a proceeding under section 107 Cr.P.C., again in course of enquiry a prayer was made on their behalf to convert the said proceeding into one under section 147 Cr.P.C. In reality also existence and non-existence of Rasta was the reason behind the apprehension of breach of peace. So, rightly proceeding under section 107 Cr.P.C. has been converted into one 147 Cr.P.C. that is a wise decision of the learned S.D.M. as information about nature of apprehension of breach of peace is relevant only.
Thus, having regard to the facts and circumstances of the case, I find no substance in submission raised by petitioners for making out a case for quashing the order dated 15.9.2008 passed in Cri.Revision no.124 of 2008/18 of 2008 and also the order dated 31.1.2008 passed in Case No. 225(M) of 2003 under section 147 Cr.P.C.
The application is accordingly, rejected.
AFR
AI ( Mandhata Singh, J.)