IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.324 of 2009 NARAYAN YADAV . Versus 1. THE STATE OF BIHAR 2. Naresh Yadav son of Talo Yadav, resident of Village- Barmasiya, P.S.- Jhajha, Dist- Jamui ----------- 3. 5.4.2010 Heard learned counsel for the petitioner and the State. No one appears on behalf of opposite party no. 2, despite valid service of notice. Questioning the final order dated 13.9.2007 under Section 147 of the Cr. P.C., the short submission is that there is no finding in terms of Section 147(3) proviso which reads as follows:- “ If it appears to such Magistrate that such rights exist, he may make an order prohibiting any interference with the exercise of such right, including, in a proper case, an order for the removal of any obstruction in the exercise of any such right: Provided that no such order shall be made where the right is exercisable at all times of the year, unless such right has been exercised within three months next before the receipt under sub-section (1) of the report of a police officer or other information leading to the institution of the inquiry, or where the right is exercisable only at particular seasons or on particular occasions, unless the right has been exercised during the last of such seasons or on the last of such occasions before such receipt.” Counsel for the State submits that it was the petitioner who denied to lead the evidence before the Court below. 2 Even if the petitioner had denied to lead evidence, it was the duty of the Opposite Party No. 2 who had preferred the original application under Section 147 Cr. P.C. to make an assertion of fulfillment of the conditions mentioned in Section 147(3) proviso that the right of passage as claimed had been exercised within three months next before making of the allegations before the Magistrate. The Magistrate was required to give his finding on this aspect, a pre- condition for exercise of the statutory power by him whether the petitioner led any evidence to rebut the same or not. There being no discussion and no findings with regard to the facts that the opposite party no. 2 was in fact using this passage as a matter of right three months prior to the institution of the complaint by him, the order dated 13.9.2007 in Miscellaneous Case No. 247M/02 becomes unsustainable. It is, accordingly, set aside. The application stands allowed. P. Kumar (Navin Sinha, J.)