IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.39146 of 2008 MOST.SHYAMA DEVI Versus STATE OF BIHAR & ANR 5 28.4.2010 Heard counsel for the petitioner and the State as well as counsel appearing on behalf of Opposite party no.2 The petitioner seeks quashing the order dated 9.3.2006 passed by the 1st Additional Sessions Judge, Samastipur whereby he has dismissed the Criminal Revision No.607/04 filed against the order dated 7.10.2004 passed by the Executive Magistrate, Patory in M.R.No.145/03 under section 147 Cr.P.C. A proceeding under section 147 Cr.P.C. was initiated on the basis of report of Anchal Adhikari, Mohiuddinnagar by the learned S.D.M., Patori by order dated 11.8.2003 whereby both the parties were directed to file their written statement in support of their respective claims. The Opposite party was the first party in the proceeding. The Executive Magistrate after perusing the records and on hearing the counsel for the parties directed the petitioner Shyama Devi to remove the obstructions of bamboos, Khar etc. put by her over Khata No.395, Khesra No.887(old) area measuring 300 Kari length and 12 Kari wide within 25 days from the date of that order for providing right of easement to Manoj Kumar Singh who is Opposite party no.2 in this case. It appears that Opposite party no.2 Manoj Kumar Singh has also filed Cr.W.J.C.no.470 of 2008 for issuance of writ of mandamus commanding the respondents to execute the order dated 7.10.2004 - 2 - passed by the Executive Magistrate, Patory in M.R.No.145/03 under section 147 Cr.P.C. The petitioner submits that the revisional court after noticing the submission of the parties did not decide the issue on merit as he was of the view that the revision is not maintainable in view of the certain observations of the Executive Magistrate. Learned counsel for the petitioner submits that a revision under section 397 read with section 401 Cr.P.C. is fully maintainable before the Sessions Court. Counsel for the Opposite party no.2 submits that the instant quashing application has been filed belatedly after two years and that too when the Opposite party had already preferred Cr.W.J.C.No.470 of 2008 for enforcing the order of the Executive Magistrate. On hearing counsel for the parties, this court finds that the learned Sessions Judge has in erred in law in holding that a revision application is not maintainable against the order passed by the Executive Magistrate under section 147 Cr.P.C. Section 397 Cr.P.C. provides that the High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding. The explanation to section 397 Cr.P.C. provides that all Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge. - 3 - KHAN For the reasons stated above, the order of the revisional court dated 9.3.2006 passed in Cr. Revision No.607/04 is set aside and the matter is remitted back to the revisional court for adjudication of the case on merit, on the basis of the materials which were on record before the learned Magistrate, preferably within five months from the date of receipt/production of a copy of this order. In the result, this application is allowed. (S.P.Singh,J)