Navratan Dubey And Others vs State Of Jharkhand And Others

Sanjay Kumar Dwivedi, J

Mr. Bhola Nath Ojha, learned counsel for the State, Mr. Shailendra Kumar Tiwari, learned counsel for opposite party nos. 2 and 3 and Mr. Rahul Kumar Singh, learned counsel for opposite party no.10.

This petition has been filed for quashing the order dated 26.08.2014 passed by the learned Additional Sessions Judge-II, Garhwa in Cr. Revision No.96/2013 affirming the order dated 19.09.2013 passed by the learned Sub-Divisional Magistrate, Garhwa in Misc. Case No.18/2009 holding that the disputed land is a pathway and direction has been issued to remove obstruction on the application filed by the private opposite parties under Section 147 Cr.P.C.

The order dated 19.09.2013 passed by the learned Sub-Divisional Magistrate, Garhwa was challenged by the petitioners in Cr. Revision No.96 of 2013 and vide judgment dated 26.08.2014, the learned Additional Sessions Judge-II, Garhwa has rejected the said criminal revision application preferred by the petitioners and affirmed the order passed by the learned Sub-Divisional Magistrate, Garhwa and, thereafter, the present case has been filed.

The point, which has been argued before this Court by Mr. K.K. Ambastha, learned counsel for the petitioners, is that Section 148 Cr.P.C. provides that the learned Sub-Divisional Magistrate if thinks it necessary, may got the matter enquired by a Magistrate subordinate to him. He submits that whereas in the present case, the then Sub-Divisional Magistrate has enquired into the matter and based on that his successor has passed the order, which is not in accordance with law. He further submits that the land was settled in view of partition suit and in spite of partition deed, the condition was there that the private opposite parties will use the land of the petitioners as pathway and in lieu of that the opposite parties will transfer the land of 5 Katha in favour of the petitioners, but the same was not transferred.

Mr. Shailendra Kumar Tiwari, learned counsel for opposite party nos. 2 and 3 submits that this order is of the year 2014 and it is only emergent in nature.

Mr. Bhola Nath Ojha, learned counsel for the State submits that the learned Court has rightly passed the order. He submits that after the criminal revision order if illegality is not there, Section 482 Cr.P.C. is not maintainable.

The Court has gone through the order passed by the learned Sub-Divisional Magistrate, Garhwa dated 19.09.2013 and finds that the learned Court has considered the evidence of both the sides including the documentary as well as oral and he has also considered the enquiry made by the then Sub-Divisional Magistrate. The learned Sub-Divisional Magistrate is also having jurisdiction of the Magistrate and the person, who has enquired the matter, has not passed the said order. The word used in Section 148 Cr.P.C is 'may' and not 'shall', which is not mandatory in nature. In view of that, first contention of Mr. Ambastha, learned counsel for the petitioners is not being accepted by this Court.

So far as second submission with regard to pathway in terms of partition decree is concerned, that can not be appreciated here and that can be subject matter of the competent Court if such a dispute is there.

Further, the Court finds that the learned Additional Sessions Judge-II, Garhwa has passed elaborate order considering all aspects of the matter.

In view of that, injustice has not been done to the petitioners and in garb of Section 482 Cr.P.C., second revision is not maintainable.

In view of the above facts, no case of interference is made out. Accordingly, this petition is dismissed.

Since the main petition itself is dismissed, the Court finds that there is no merit in other I.As., which are, accordingly, also dismissed.