IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.24647 of 2011 Ramraj Singh Versus The State Of Bihar & Anrs. ----------- 2. 27.07.2011 This petition has been filed for quashing the order dated 23.03.2011 passed by the learned Sessions Judge, Rohtas, in Cr. Rev. No. 116 of 2010, whereby the petitioner’s revision petition has been dismissed on the ground that the same is not maintainable against the order dated 28.08.2009 passed by the learned S.D.M., Sasaram at Rohtas in case No. 433 of 2008. Heard learned counsel appearing for the parties. It transpires from the record that the learned S.D.M. initiated a proceeding under Section 133 Cr. P.C. in terms of his order dated 29.09.2008 which culminated in the final order dated 21.08.2009, as appearing in Annexure-1 to the instant petition. The Anchal Adhikari, C.O., Sagar Sheo, was inter alia, directed thereby to execute his order passed in Encroachment Case No. 31 of 2007-08. The petitioner preferred a revision application against the aforesaid order, which, however, came to be dismissed by the learned Sessions Judge, Rohtas on the ground that it was not maintainable and the legality and validity of which is now the subject matter of challenge. The learned counsel for the petitioner invites attention to the provisions of Sections 133 to 138 Cr. P.C. and other related provisions. He submits that in matters relating to unlawful obstruction or nuisance contemplated under Section 133(1) (a), a conditional order is first required to be passed and thereafter a final order in terms of Section 138 2 Cr. P.C., and that too only after observing the due process of law. It is clearly mandated under Section 138(1) that in the circumstances stated therein, the concerned Magistrate shall take evidence in the matter as in a summons case which has not been done in the instant case. Learned counsel for the petitioner further submits that such order is amenable to challenge under Section 397 & 399 Cr. P.C. in revisional jurisdiction before the learned Sessions Judge, which right has been duly exercised by him. He points out that no other remedy is available under the Cr. P.C. to challenge the validity of the order of the learned S.D.M. and the learned Sessions Judge has fallen into error in treating the revision application as not maintainable. Learned counsel for the State on the other hand has submitted that the petitioner ought to have moved this Court in terms of Section 482 Cr. P.C. rather he preferred a revision application under Section 397 and 399 Cr. P.C. After considering the submissions made by the learned counsel for the parties, the materials on record and also having regard to the provisions of the Explanation to Section 397(1) Cr. P.C. which expressly states that all Magistrates, whether Executive or judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of that sub-section, this Court is of the view that a revision petition would be maintainable against the order of the learned S.D.M. In this view of the matter, the learned Sessions Judge has fallen into error in holding that the revision application was not maintainable. The impugned order dated 23.03.2011 passed by the learned 3 Sessions Judge, Rohtas in Cr. Revision No. 116 of 2010 is accordingly quashed and the matter is restored to his file for fresh adjudication after giving due opportunity to the parties in accordance with law. Saif (Vikash Jain, J.)