IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.42739 of 2006 1. Premlata Devi wife of Shri Lal Prasad Singh 2. Rampari Devi @ Ramparo Devi ,Wife of Late Rajballav Singh Both resident of Mohalla-Radha Krishna Nagar, Ward No.8,Saharsam P.S. Saharsa, District-Saharsa ------------------ Petitioners. Versus 1. THE STATE OF BIHAR 2. Pratibha Devi wife of Swantantra Kumar Singh, resident of Mohalla-Radha Krishna Nagar, Ward No.8, P.S. Saharsa, District-Saharsa -------------- Opp.Parties. ----------- For the petitioners : M/s Krishna Prasad Singh, Sr. Advocate Bhaskar Shankar, Mithilesh Kr. Singh Manish Kumar No.3, Advocates For the State : Mr. Maya Nand Jha, A.P.P. For Opp.Party no.2 : M/S Indu Bhushan , and Dr. Kishlay, Advocates. ------------ O R D E R The two persons impleaded as accused in Misc.Case No.484 of 2004 are aggrieved by order dated 11.9.2006 passed by the Presiding Judge, Fast Track Court No.VI, Saharsa, in Cr.Revision No.274 of 2004, whereby while rejecting the revision application filed by the petitioner, he has upheld the order dated 6.7.2004 passed in the aforesaid Misc.Case by the learned Sub Divisional Magistrate, Saharsa, initiating a proceeding under Section 147 Cr.P.C. in respect of 10 dhurs of land appertaining to khata no.53 and khesra no.347, 360. The facts of the case may be noticed briefly. Pratibha Devi, first party in the aforesaid Misc.Case, impleaded herein as Opp.Party no.2 , filed an application for initiation of proceeding against the petitioners under Section 147 Cr.P.C. and the learned Magistrate on - 2 - the basis thereof called for a police report. According to the first party, she is living in her house from the year 1972 after purchasing the land on 2.8.1972 and constructing her house thereupon leaving some space on the eastern side of her house for passage of egress and ingress. It was alleged that the petitioners and their family members obstructed the passage by constructing a boundary-wall and also sinking a hand-pump thereupon. The claim of the first-party is that she was using the passage till three months from prior to the date of filing the application under Section 147 Cr.P.C. i.e. 18.3.2004. It is alleged that the passage had been left by the vendor for use and the purposes of egress and ingress at the very time of sale of the said land to the first party. It was also stated that the lands of the petitioners are on the eastern side of her land and that the petitioners and their family members were not law abiding citizen and had constructed the wall over the passage forcibly. It appears that after receipt of the police report, the Magistrate initiated the proceeding under Section 147 Cr.P.C. Assailing the impugned orders of the learned Magistrate as also the revisional court, it was submitted on behalf of the petitioners that the order itself was vague in view of the fact that the area of disputed plot had not been mentioned. It was further submitted that the police report did not mention that the right of user of the passage in question was exercised within three months of the police report. It was also submitted that police report did not reveal that there was any apprehension of breach of peach. - 3 - On the contrary, the submission on behalf of Opp.Party no.2 was that the impugned orders were fully justified and no illegality was to be found therein. In this connection, it was submitted that the satisfaction of the Magistrate for initiating the proceeding under Section 147 Cr.P.C. was fully mentioned in the impugned orders and that the right of user is to be decided at the time of passing of final order under Section 147 Cr.P.C. I have had the occasion to peruse the order of the revisional court as also that of the learned Magistrate. It is apparent from the order of the learned Magistrate as also the police report that the petitioners and their family members had obstructed the right of user of passage by the first party before filing of the petition by constructing a wall and sinking a hand-pump on the disputed land. In the police report dated 6.7.2004 and 27.6.2004 there is no mention about any obstruction of passage within three months before initiation of the proceeding but there is a clear mention about their being apprehension of breach of peace in respect of the lands in dispute. I find no merit in this application questioning the validity and the legality of the order of the learned Magistrate initiating the proceeding under Section 147 Cr.P.C. as also in the order of the revisional court upholding the order of the learned Magistrate. Accordingly the application is dismissed. ( Abhijit Sinha, J ) Patna High Court,Patna Dated : the 5th May,2009 Nawal Kishore Singh/F.A.R.