IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.46205 of 2007 1. SHYAM SUNDAR JHA 2. ASHUTOSH JHA, BOTH SONS OF LATE SUMIT LAL JHA, RESIDENT OF MOHALLA URDU BAZAR, P.S. TATARPUR(KOTWALI), DISTRICT BHAGALPUR. …PETITIONERS. Versus 1. STATE OF BIHAR 2. BHAWESH CHOUDHARY @ BHAWESH NARAYAN CHOUDHARY, SON OF LATE AYODHYA CHOUDHARY, RESIDENT OF MOHALLA URDU BAZAR, P.S. TATARPUR(KOTWALI), BHAGALPUR …OPPOSITE PARTIES ----- 6. 24.08.2010 Heard counsel for the parties. Petitioners are the first party to the proceeding initiated by learned SDM, Bhagalpur under section 133 of the Code of Criminal Procedure (hereinafter referred to as the „Code‟). It appears that an order was passed disposing of the application on 05.03.2005. Aggrieved by the aforesaid order, the second party (O.P.No.2 herein) preferred Cr. Rev. No.150/05. Learned revisional court on a consideration of the case of the parties, disposed of the said revision application by its orders dated 18th July,2007 in the following manner: “5. In this case it is very much clear that revisionist appeared and filed showcause against order u/s 133(1) Cr.P.C. but the learned Magistrate did not make any enquiry and did not take any evidence after denial and after filing of the showcause questioning the order. A report was called for from an executive Magistrate, which was never submitted. Had the report been submitted u/s 139 Cr.P.C., the same alone was not enough to conclude enquiry u/s 138 Cr.P.C. Taking evidence in an enquiry u/s 138 is a must. Learned S.D.M. did not follow the procedure as laid down u/s 138 Cr.P.C. The order passed by learned Sub-Divisional Magistrate making the order u/s 133(1) Cr.P.C. absolute, is 2 unjust, unreasonable, illegal and without following the procedure laid down in Cr.P.C. 6. For the reasons stated above, this revision is allowed and the impugned order dated 5.3.2005 is set aside.” Learned counsel for the petitioner submits that if there was any non-compliance with the provisions of the Code, the matter after setting aside the order ought to have been remitted back to the learned SDM for passing a fresh order in accordance with law. It is contended that as per the scheme of the Code, learned SDM was also entitled to make an enquiry for himself in terms of section 138 of the Code. It is thus contended that learned SDM may be directed to take up the matter once again and decide the case afresh in accordance with law. Learned counsel appearing on behalf of O.P.No.2 contends that petitioners are constantly filing application(s) against the present O.P.No.2. It is contended that this was the application preferred by the petitioners and, as such, a fresh proceeding can be initiated, but only upon filing of a fresh application on behalf of the petitioners or the party interested in getting such proceeding initiated in respect of the land(s) on which public Rasta is being claimed. I have considered the submissions advanced on behalf of the parties. On a bare perusal of the revisional order it is seen that on the rejoinder filed on behalf of opposite party no.2 the enquiry was entrusted to an Executive Magistrate who did not submit a report and in absence of the report a conditional order in terms of section 133(1) was passed. Once an 3 enquiry has been initiated in terms of the provisions of the Code, learned SDM ought to have waited for the report of the said Enquiry Officer. Admittedly, the report submitted by the Executive Magistrate was not the report on the respective claims of the parties. This Court having considered the submissions of the parties is of the view that the matter should go on remand to the learned SDM for deciding the issue/dispute afresh in accordance with law. Needless to observe that in view of the scheme of the Code, learned Magistrate could have himself conducted the enquiry as contemplated under the Code. This issue is, however, left open. The application is disposed of with the following direction: Let learned SDM take up the case being Misc. Case No.1430/01(Ashutosh Jha vs. Bhawesh Choudhary) and decide the same in accordance with law keeping in view the infirmity pointed out by the revisional court in its order dated 18.07.2007 hr ( Kishore K. Mandal )