IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.18274 of 2009 RAPHAKAT ANSARI, SON OF ABDUL JALIL, RESIDENT OF VILLAGE AND P.O. NANPUR, P.S. NANPUR, DISTRICT SITAMARHI. ----- PETITIONER Versus 1. THE STATE OF BIHAR 2. REYASAT ANSARI, SON O LATE MUZIBUR RAHMAN, RESIDENT OF VILLAGE NANPUR, P.S. NANPUR, DISTRICT SITAMARHI ----- OPPOSITE PARTIES For the Petitioner :- Mr. Ashwani Kumar Singh, Sr. Advocate Mr. Madanjeet Kumar, Advocate Mr. Pankaj Kumar Singh, Advocate For the State :- Mr. Dr. Mayanand Jha, A.P.P. ----------- 2 16.9.2009 Heard learned counsel for the petitioner. The petitioner has challenged the order dated 2.8.2008 passed by Sub Divisional Magistrate, Pupari, Sitamarhi in Case No. 69 of 2008 by which he has ordered that the petitioner should remove the wall as it is obstructing the right of easement of the opposite party no. 2. The case of the petitioner is that the opposite party no. 2 has no right to the use of the land on which the wall has been constructed, whereas the case of the opposite party no. 2 is that he has been using the land in question as a path way, as it goes from his house to reach the road. It is also stated that he is exercising such right for the past 15 years. The Sub Divisional Officer has called for a report from the Circle Officer. The report of the Officer Incharge is also on record before the Sub Divisional Officer on the basis of which he has upheld the case of the opposite party before this Court. The main objection of the counsel for the petitioner is that the Court of Sub Divisional Officer and the Revisional Court i.e. the Additional District & Sessions Judge, Fast Track Court No. III, Sitamarhi has not considered the provisions of Sub Clause 3 of Section 2 147 and Section 148 of the Code of Criminal Procedure before passing the order. The contention is that the Sub Divisional Officer ought to have recorded that the opposite party Reyasat Ansari was exercising the right of easement three months prior to the enquiry. It is also submitted that the enquiry report submitted by the Circle Officer was ex-parte and does not contain details regarding the enquiry made by him besides which it is submitted that Section 148 of the Cr.P.C. envisages that the District Magistrate or Sub-divisional Magistrate may depute any Magistrate subordinate to him to make the inquiry, and may furnish him with such written instructions as may seem necessary for his guidance, and may declare by whom the whole or any part of the necessary expenses of the inquiry shall be paid. The Circle Officer is not a magistrate as per Section 20 of the Code of Criminal Procedure. This Court is not issuing notice in this case as the question is a technical one and it would only result in prolonging the proceedings. I therefore direct that the Sub-divisional Officer may ascertain whether the Circle Officer is duly authorized by the State Government or by a notification of any order to conduct an enquiry under Section 148 of the Code of Criminal Procedure. It may be noted that the aforesaid objection had been raised by a petition filed before the Sub-divisional Officer on 29.7.2008 which has been annexed asannexure-3 to the application which has not been answered by the Sub-divisional Officer. If the Sub-divisional Officer finds that the Circle Officer is not competent to conduct an enquiry, the Sub- 3 divisional Officer after notice to the opposite party no. 2 may appoint an Executive Magistrate to conduct an enquiry in presence of the party and record the evidence of the witnesses in the enquiry report so that the matter may be decided in favour of one or the other party. The petitioner is directed to file an application before Sub-divisional Judicial Magistrate by 15th of October, 2009 and the Sub-divisional Officer on appearance of the opposite party no. 2 should order that a fresh enquiry be held and dispose of the matter by 30th of November, 2009. I may also clarify that since both the parties are relatives and are probably cousins, it would be essential for the Sub-divisional Officer to keep in mind the provisions of Section 147 of the Cr.P.C. which requires clear cut finding that Reyasat Ansari was utilizing the passage which is 4 feet wide and 20 feet long appertaining to RSP No. 3288, Khata No. 561, measuring total area 24 decimals in village Nanpur. I therefore, remand the matter back to the Sub-divisional Officer in Case No. 69 of 2008 and set aside the order dated 2.8.2008 passed by Sub-divisional Magistrate, Pupari, Sitamarhi and order dated 19.2.2009 passed by the Additional District & Sessions Judge, Fast Track Court No. 3, Sitamarhi in Criminal Revision No. 144 of 2008. This application is disposed of with the aforesaid observations and directions. Sanjay (Sheema Ali Khan, J.)