IN THE HIGH COURT OF JUDICATURE AT PATNA CR.MISC. NO.9721 OF 2009 1. SUSHIL KUMAR SHUKLA, SON OF SHRI RAMESHWAR SHUKLA, RESIDENT OF MOHALLA DELASHANKAR, POLICE STATION L.N.M.U., DISTRICT DARBHANGA 2. SUBODH YADAV, SON OF LATE PARMESHWAR YADAV, RESIDENT OF MOHALLA CHUNA BHATHI, POLICE STATION SADAR. AT PRESENT MOHALLA BELASHANKAR, POLICE STATION L.N.M.U., DISTRICT DARBHANGA ………………………………………………………………………………..PETITIONERS VERSUS 1. THE STATE OF BIHAR 2. CHANDRA SHEKHAR PRASAD, SON OF LATE LAXAMI NARAYAN PRASAD 3. KRISHNA KUMAR PRASAD, SON OF LATE RAMESHWAR PRASAD 2 & 3 ARE RESIDENT OF MOHALLA BELASHANKAR, POLICE STATION L.N.M.U., DISTRICT DARBHANGA ……………………………………………………………………..OPPOSITE PARTIES ********** 2 25/11/2009 Heard learned Counsel for the petitioners and the A.P.P. appearing on behalf of the State. The petitioners have challenged the order dated 03.02.2009 passed by the Additional Sessions judge, Fast Track Court No. IV, Darbhanga in Criminal Revision No. 112 of 2003 whereby and whereunder the Additional Sessions Judge, Fast Track Court No. IV, Darbhanga has confirmed the order dated 06.01.2003 passed by the Sub Divisional Magistrate, Sadar, Darbhanga in M. R. Case No. 389 of 2002. By order dated 06.01.2003, the Sub Divisional Magistrate, Darbhanga has ordered that the petitioners should remove the encroachment made over plot no. 120 within a period of fifteen days of the order. Ordinarily, this Court would have issued 2 notice to the Opposite Parties before remanding the matter to the Court below. However, since the question involved is a pure question of law, I think it would be a waste of Court’s valuable time in issuing notice to Opposite Parties and then pass an order remanding the matter. The wives of the Opposite Parties purchased land from the petitioners with respect to plot nos. 117, 122 and 124, Counsel for the petitioners did not produce any documents before the Sub Divisional Magistrate, Darbhanga, however, sale deeds were produced by the Opposite Parties before the Revisional Court. It has been noticed by the Revisional Court that the sale deed in favour of the Opposite Parties shows the existence of a road (RASTA) running north to south. Learned Counsel for the petitioners submits that he has not encroached or put any hindrance in the use of the said RASTA which is part of the sale deed, rather he has constructed a room over plot no. 120 which admittedly does not belong to the Opposite Parties. The main contention raised on behalf of the petitioners is that as per sub-section 3 of Section 147 of the Code of Criminal Procedure, the Magistrate 3 has been given the right to make an order prohibiting any interference when the exercise of such right including in a proper case an order to remove obstruction in exercise of any right with respect to the dispute over land or water. The proviso to sub-section 3 further provides that the order shall be made whether 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 the police officer or other information leading to the institution of the enquiry, or whether the right is exercisable only at particular seasons or on particular occasions, unless the right has been exercised during the last of such season or under last of such occasions before such receipt. On perusal of the order of the Sub Divisional Magistrate, Sadar Darbhanga, it is apparent that the Court while judging the matter has not considered the sale deeds of the Opposite Parties and has not followed the provisions of sub section 3 of section 147 of the Code of Criminal Procedure. In the result, this Court has no option but to remand this matter to the Sub Divisional Magistrate, Sadar Darbhanga to pass an order in accordance with law after hearing both the parties and considering the 4 sale deeds on which the Opposite Parties base their claims with respect to the disputed RASTA. Since the dispute relates to whether the RASTA exist over plot no. 117, 122 and 124, it would be in the interest of justice that the measurement and spot verification be conducted before passing any order. The order with respect to removal of obstruction passed by the Sub Divisional Magistrate in M.R. No. 389 of 2002 shall remain stayed until the final order is passed. The Sub Divisional Magistrate should decide the 147 proceedings within a period of four months from the date of receipt/production of a copy of this order. This application is disposed of with the aforesaid observations and directions. Anand ( Sheema Ali Khan, J.)