IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.531 of 2007 SHRI KRISHNA PANDEY Versus THE STATE OF BIHAR & ORS ----------- 5 1.9.2008 In the instant writ application the petitioner prays for issuance of an appropriate direction to the respondents to perform their legal duties and remove the obstruction obstructing his right of passage and way. 2. The petitioner Sri Krishna Pandey filed an application under section 147 of Cr.P.C.,with respect to obstruction to his right of passage caused by the O.P. No.2, Baldeo Pandey (since dead), respondent no.5. The S.D.O. vide his order dated 28.2.2000, passed in Case No.193(M) of 1997, under section 147 of Cr.P.C.,observed that first party has right to way with respect to the land in question which was being obstructed by the second party. The Executive Magistrate also directed O.P., B.Pandey to reopen the closed passage within one week of the order. 3. Aforesaid B.Pandey filed revision application being Cr.Rev. No.168 of 2000 / 66 of 2000, which was dismissed in lemine by order dated 8.7.2002. 4. In the meantime B.Pandey respondent no.5 filed a T.S. bearing T.S.No.361/02, for declaration of his right on the land in question. After death of Sri B.Pandey, Respondent No.5, Dinesh Chandra Pandey was substituted, being his son. The plaintiff filed an injunction petition restraining the petitioner from interfering with the possession which was too dismissed. The 2 petitioner filed a contempt application before this Court being M.J.C. no.564/05, against opposite party for willful and deliberate violation of the order passed by this Court, dated 4.3.2002, in Cr.Misc. No.4695 of 2001. 5. This Court observed that merely because the aforesaid order of Executive Magistrate was tested unsuccessfully in this Court as well as the Apex Court, it would not itself make a cause for initiation of contempt against the respondents. This Court further observed that if any such order under section 147 of Cr.P.C. is violated by any party concerned, the remedy is by way of filing a complaint under section 188 of I.P.C. and not by invoking the contempt jurisdiction of this Court. 6. The learned counsel for the petitioner submits that section 188 of I.P.C. entitles only an Executive Magistrate or a Public authority whose order is violated to file an application under section 188 of I.P.C. The provision does not entitle an aggrieved party to file any such complaint under section 188 I.P.C. 7. The learned counsel submits that order under section 147 of Cr.P.C. confers a legal right and it cannot be said that it is purely an administrative order. He submits that this Court in writ jurisdiction can give an appropriate direction for securing ends of justice. In this respect learned counsel relied upon a decision of the Hon’ble Apex Court in A.I.R. 1962 S.C. 1075 in a case of Kolkata Gas Company(Pvt.) Ltd. Vs the State of West Bengal and others. 3 8. The learned counsel for the O.P. – respondent no.5 submits that the order of the executive Magistrate does not confer any permanent legal right of easement and the same is subject to any decision in civil proceeding of a competent civil court. In support of his submission learned counsel for the respondents relies upon a Full Bench decision in a case of B.K.Sen Gupta vs. J.C. Sen and ors. reported in 1960 Assam 111. He further submits that the remedy available is only under section 188 of I.P.C. 10. Having heard the learned counsel for the parties this Court finds that there cannot be any dispute to the proposition laid down by their Lordships in the case of B.K.Sen Gupta (supra). 11. In the aforesaid case their Lordships held that sections 144, 145,146 and 147 of Cr.P.C. and similar other sections are preventive sections enabling courts of Magistrate to pass temporary orders, to avert breach of peace , if any. They do not decide the rights of the parties except for the purpose of temporarily keeping the parties at peace. Their Lordships further observed that such an order under section 147 of Cr.P.C. declaring a certain party to have the right to use a certain land as path way, which had been closed by the other party, or declaring a party to be deemed to be in possession under section 145, sub-section (4), proviso (2) , cannot fetters the discretion of the civil court under the provisions of Order 39,Rule 1 or Rule 2 of Cr.P.C. as the case may be. The cases cited 4 above reiterates the position of law that an order passed under sections 144 to 147 of Cr.P.C. are subject to the final adjudication of right by a competent civil court. Further more a careful reading of the aforesaid order would show that the Full Bench, in fact, had recognized this temporary right of a party in whose favour the order has been passed for the purpose of temporary relief for the avowed object of maintaining peace. 12. The Hon’ble Apex Court while considering the nature and scope of proceeding under Article 226, observed that the High Court under the aforesaid Article has wide power to issue writs as mentioned therein for enforcement of any of the rights conferred by Part III of Constitution as well as other legal rights. The existence of a right is foundation of the exercise of right under Art. 226 of the Constitution of India. 13. In view of the aforesaid discussions this Court is of the view it cannot be said that an order under section 147 of the Cr.P.C. does not confer any right to the party in whose favour the order has been passed, though this right may be a limited right and for temporary period . Section 147 of Cr.P.C. likewise confers a limited right in favour of the party concerned in whose favour order is passed for the purpose of giving temporary relief to avert breach of peace. The orders passed as such has to be observed subject to any order of any competent civil court or other authorities otherwise very purpose of keeping peace would be rendered meaningless. The Magistrate can direct the law enforcing agency to 5 ensure compliance of the order. Section 188 of I.P.C. is an additional provision enabling an authority to file a complaint for punishing those who do not perform in violation of its order. 14. In view of the aforesaid back drops of the aforesaid finding this Court directs the respondent no.3 to act and to take proper step for enforcing its order dated 28.2.2000 in the light of the observation made in the writ application. 15. In the result this writ application is allowed to the extent stated above. Anilksinha (Samarendra Pratap Singh,J.)