IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.16750 of 2007 JAGDISH SINGH & ANR Versus STATE OF BIHAR ----------- 5 16-09-2008 Heard Sri Nawal Kishore Singh, the learned counsel for the petitioners as also the learned A.P.P. for the State and Sri Abhay Kumar Singh No.1, the learned counsel for Opp.Party . The petitioners, who happen to be the second party in a proceeding under Section 133 Cr.P.C., being Case no.243(M) of 2003, before the Sub Divisional Magistrate, Sadar, Patna ,are aggrieved by the order dated 19.3.2007 passed therein whereby the learned Magistrate has directed for removal of the alleged encroachment. The order itself is absolutely perfunctory and it has been passed without considering the facts and circumstances of the case, and without mentioning as to what is the report of the Anchal Adhikari that has been submitted by him and whether he has accepted the same in toto and what was the reason to direct for removal of the encroachment. From the impugned order it appears that it has been written out by an absolute novice who does not have even the basic minimum knowledge of procedural law and has merely acted at the instance of some “invisible hands”. Section 138 Cr.P.C. lays down that if the person against whom the order under Section 133 Cr.P.C. is made appears and shows cause against the order, the Magistrate shall take evidence in the matter as in a summons case. Apparently, the - 2 - Magistrate has not recorded any evidence in the matter and without recording such evidence he has blindly placed reliance on the report of the Anchal Adhikari and directed for removal of the encroachment. Such perverse and perfunctory order is neither warranted nor permissible. Accordingly, the impugned order dated 19.3.2007 passed in Case no.243 (M) of 2003 pending in the Court of Sub Divisional Magistrate, Sadar Patna is hereby quashed and the application is allowed. If the alleged encroachment still stands and causes breach of peace then the learned Magistrate will act upon the same in accordance with the procedure as laid down for the purpose and not at the instance of or dictates of “ invisible hands”. The parties are directed to appear before the learned Magistrate on 29th September,2008 and got a date fixed , on which date the learned Magistrate will act in accordance with law. With the aforesaid observations, this application is disposed of . ( Abhijit Sinha, J) NKS/-