IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.56652 of 2007 1. RAVI NANDAN PRASAD SINGH, son of Suraj Prasad Singh 2. Amresh Kumar Singh, son of Ravi Nandan Singh, both resident of village Banagara police station, Mahrajganj, Siwan …Petitioners Versus 1. THE STATE OF BIHAR 2. The Collector, Siwan 3. The Sub-Divisional Magistrate, Maharajganj. 4. The Circle Officer, Maharajganj. 5. The officer-in-charge, Maharajganj, police station, Siwan 6. Anil Kumar Singh, son of Late Raj Bali Singh, resident of village Bangara, police station Maharajganj, Siwan. …Opposite parties For the petitioners :Mr.Sudhir Singh & :Mr.Akhilesh Kumar For the State :Mr. Anil Kumar Sinha, AC to SC 12 ----------- 05. 12.07.2010 Heard both sides. Petitioners who are second party to the proceeding in the court below, seek to challenge the order dated 20.03.2006, passed by the learned Sub-divisional Magistrate, Maharajganj, Siwan in case No. M-71/2006(Anil Kumar Singh vs. Ravi Nandan Singh), whereby, on a consideration of the show cause(s) filed by the parties and after having been satisfied that there is a cause (right of easement) in respect of a „Gali‟ adjacent to the house of the petitioners(second party in the proceeding) has initiated proceeding in terms of section 147 of the Code of Criminal Procedure(for short „the Code‟). Parties have been directed to file their show cause and to contest the same. A dispute in relation to a peace of land(allegedly a lane) on khata nos.459 and 148, survey plot nos.1476 and 1471 is the bone of contention between the parties. The petitioners herein claim the same as their own Rasta/Gali, whereas opposite parties herein claim the same - 2 - as Rasta used by the public at large and, therefore, a right of easement. While assailing the initiation of proceeding, learned counsel for the petitioners states that earlier to this a proceeding between the parties relating to the same land was initiated vide Case No.856/2005 which was decided in his favour. This is what the petitioners have stated in paragraphs 16 and 17 of the petition: “16. That it is stated that the Respondent No.3 the Sub-Divisional Magistrate initiated proceeding under section 147 of the Cr.P.C. and issued notices to the petitioners vide order dated 10.12.2005. 17. That it would be relevant to state here that the Respondent sub-Divisional Magistrate after hearing the both parties and considering all the facts dropped the proceeding vide order dated 9.1.2006.” It is thus contended that initiation of fresh proceeding by the impugned order is barred by reason of the provision contained in section 362 of the Code. Learned counsel appearing on behalf of the State, on the other hand, states that there is no infirmity in the order as learned Magistrate on perusal of the materials placed on record including the police report and after giving both the parties opportunity to submit their show cause(s) has come to a conclusion that there exists a dispute which needs to be resolved in terms of section 147 of the Code. The satisfaction by the Magistrate is recorded in the order. I have heard the parties and perused the materials on record. The stand of the petitioners is that earlier to this there was a proceeding which was decided in their favour. I have already noticed the pleadings made in this regard. The State has filed a counter - 3 - affidavit wherein the following facts have been averred in paragraph 4. “4. That before giving parawise reply of the instant application it is humbly stated and submitted that the contention of the petitioner as stated in Para-17 of the instant application to the extent that the Sub-Divisional Magistrate after hearing both the parties and considering all the facts dropped the proceeding U/s 147 Cr. P.C. in M. No.856/2005, vide order dated 09.01.2006 is wrong, false concocted hence denied. It is relevant to mention here that from perusal of the statements made in para-16 of the instant application by the petitioner itself it appears that the Sub-Divisional Magistrate, initiated a proceeding under section 147 of the Cr. P.C. and issued notice to the petitioner vide order dated 10.12.2005 and, thereafter, on 09.01.2006 i.e. within one month dropped the said proceeding. In this connection it is humbly stated and submitted that it is not possible that a proceeding which was initiated U/s 147 Cr. P.C. was finally dropped without taking evidence etc. and that too within a period of one month hence the statement made in para-17 of the instant application is denied herewith.” From the materials available on record, this Court is not satisfied that prior to the present initiation of proceeding there was a proceeding under section 147 in which both the parties were given full opportunity to adduce evidence and thereafter the same was disposed of on merit. In that view of the matter reliance placed by the petitioners on section 362 of the Code of Criminal Procedure seems to be misconceived. Section 362 Cr. P.C. reads thus: “362. Court not to alter judgment.- Save as otherwise provided by the Code by or any other law for the time being in force, no Court, when it has signed its judgment or - 4 - final orders disposing of a case, shall alter or review the same, except to correct a clerical or arithmetical error.” Reliance on section 362 of the Code does not support his stand. It is not the case of the petitioners that there is any such bar in terms of section 147 or the provision analogous thereto for initiating a proceeding in order to resolve the dispute. There is no merit in this application which is accordingly dismissed. hr ( Kishore K. Mandal )