IN THE HIGH COURT OF JUDICATURE AT PATNA CR.MISC. NO.6326 OF 2009 BABULAL TRIPATHI@ BABULAL TIWARY, SON OF LATE NAND KISHORE TIWARI, RESIDENT OF VILALGE BARKAGAON, POLICE STATION KARJA, DISTRICT MUZAFFARPUR VERSUS 1. THE STATE OF BIHAR 2. ARJUN TIWARI, SON OF DHANESH TRIPATHI, RESIDENT OF VILLAGE BARKAGAON, POLICE STATION KARJA, DISTRICT MUZAFFARPUR ……………………………………………………………………..OPPOSITE PARTIES ******** 2 10/11/2009 Heard learned Counsel for the petitioner and the A.P.P. appearing on behalf of the State. The petitioner has filed this application for quashing the order dated 11.12.2008 passed in Criminal Revision No. 158 of 2008 affirming the order dated 22.05.2008 in Case No. 583 of 2007. Learned Counsel for the petitioner submits that the order of the Sub Divisional Magistrate as well as the Revisional Order suffers from error of record inasmuch as it is mentioned in the impugned order that there is a 12-feet wide road between the house of the petitioner and the house of the agnates-Opposite Party which is used as common passage, available for both the parties. Learned Counsel for the petitioner refers to Annexure-1 which is the partition deed. The partition deed indicates that 10-12 karis of land will be left open which will be used for egress and ingress. From Annexure-2 which is the Panchnama, it is also clear that some land has been left 2 open for the purpose of using it for egress and ingress for the parties concerned. In a case of this nature where parties do not dispute the fact that a piece of land has been left open as a common passage to be used by the Opposite Party it would have been proper for the authorities to conduct a spot verification before passing any order under Section 147 of the Code of Criminal Procedure. Accordingly, this matter is remanded to the Sub Divisional Magistrate, West, Muzaffarpur who will hear the parties, get the passage measured and inspect whether infact there is any encroachment on the said land in terms of the partition deed and panchnama (Annexures 1 and 2). The impugned order shall not stand in the way of Sub Divisional Magistrate in passing the final orders in accordance with law after the spot verification. It would be proper that orders should be passed within a period of four months on receipt/production of a copy of this order. In the mean time, the house of the petitioner should not be demolished in pursuance of the order of the Sub Divisional Magistrate, West, Muzaffarpur passed in Case no. 583 of 2007. Anand ( Sheema Ali Khan, J.)