Dismissed

Munshi Sharma v. the State of Jharkhand

Jharkhand HC10 Apr 2023Cr.M.P./1916/2012

Case brief

AI extract

What is this about?

Court dismissed a Special Case in Criminal Miscellaneous Petition challenging the affirmation of an order under Section 133 Cr.P.C. directing removal of a boundary wall. Court held statutory procedure was complied with and affirmed lower orders. Such second revisions are maintainable only if injustice is shown.

What did the court decide?

Petition to quash the affirmed order directing removal of boundary wall was dismissed.

Munshi Sharma Vs the State of Jharkhand — Civil Procedure and Limitation | Jharkhand HC (2023)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Cr.M.P. No. 1916 of 2012

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Munshi Sharma

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Parash Nath Sharma @ Parash Nath Pandey @ Parash Sharma

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Jai Prakash Pandey @ Jai Prakash Sharma ..... … Petitioners Versus

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The State of Jharkhand. 2. Brij Nandan Jha ..... … Opposite Parties

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CORAM : HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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-----For the Petitioners : Mr. Sahil, Advocate. For the State : Mr. Prabhu Dayal Agarwal, Spl.P.P. ------

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17/ 10.04.2023 This petition has been filed for quashing of the order dated 26.07.2012, passed by the learned Sessions Judge, Bokaro, in Criminal Revision No. 121 of 2011, whereby the order dated 14.07.2011, passed by the learned Sub-Divisional Magistrate, Chas, Bokaro, in M.P. Case No. 52 of 2010, the petitioners have been directed to remove their boundary wall within a period of seven days in purported exercise of powers under Section 133 Cr.P.C. has been affirmed.

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Learned counsel appearing for the petitioners submits that the petitioner No. 1 has purchased a piece of land measuring an area of 3/4 decimals appertaining to plot No. 7645 under khata No. 735 in MouzaChas from Laleshwar Prasad Sinha. He submits that the son of petitioner No. 1 has also purchased a piece of land measuring an area of 4 ¾ decimals appertaining to plot No. 7645 under khata No. 735 in MouzaChas by registered sale deed dated 03.12.2003. He further submits that O.P. No. 2 filed a petition before the C.O., Chas, alleging therein that the petitioners closed the common passage by raising wall and accordingly, he requested the C.O. to get the said passage opened. He further submits that on the basis of said application, a proceeding under Section 133 Cr.P.C. was started. He further submits that the learned S.D.O., Chas, Bokaro, without following the procedure laid down under Section 138 Cr.P.C. has passed the order, under Section 133 Cr.P.C. He also submits that no opportunity has been provided to the petitioners and also the statutory provision of Section 138 Cr.P.C. has not been followed. He further submits that specific plea has been taken by the petitioners before the learned Sessions Judge, Bokaro, however, the learned Sessions Judge has dismissed the revision petition on 26.07.2012.

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On these grounds, learned counsel appearing for the petitioners submits that this petition may kindly be allowed.

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Learned Spl.P.P. appearing for the State submits that the learned SDO, Chas, Bokaro, after looking into the report of the C.O., Chas, Bokaro, has passed the order under Section 133 Cr.P.C. and this aspect of the matter has also been considered by the learned Sessions Judge and by order dated 26.07.2012, he has been pleased to dismiss the Criminal Revision No. 121 of 2011 by way of affirming the order of learned S.D.O., Chas, Bokaro. He further submits that there is no stay in the matter and this matter is also of the year 2012.

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In view of the above submissions of learned counsel appearing for the parties, the court finds that admittedly on the complaint, the proceeding under Section 133 Cr.P.C. was started by the learned S.D.O., Chas, Bokaro, vide order dated 14.07.2011 and directed the petitioners to remove the boundary wall and the said order was passed on the report of the C.O., Chas, Bokaro dated 13.07.2009, wherein it has been disclosed that 5 feet boundary wall has been erected by these petitioners, due to that the road of the first party on the Eastern side has been blocked. The learned Sessions Judge, Bokaro has also considered this aspect of the matter and found that the learned SDO, Chas, Bokaro has passed the order, on the basis of the report of the C.O., Chas, Bokaro, wherein it has been disclosed that the common path has been blocked.

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For the purpose of enquiry under Sections 137 or 138 Cr.P.C., there is procedure prescribed in Section 139 Cr.P.C., which is quoted hereinbelow:-

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“ 139. Power of Magistrate to direct local investigation and examination of an expert. The Magistrate may, for the purposes of an inquiry under section 137 or section 138-

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(a) direct a local investigation to be made

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by such person as he thinks fit ; or

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(b) summon and examine an expert.

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Looking into Sub-section (a) of Section 139 of Cr.P.C., it transpires that for the purpose of complying the provisions of Sections 137 and 138 Cr.P.C., the learned court can proceed on the basis of the local investigation to be made by such person, as he thinks fit. In the case in hand, the report of the C.O., Chas, Bokaro is already there and after considering this aspect of the matter, the learned court of S.D.O., Chas, Bokaro has rightly passed the order and also the said order has rightly been affirmed by the learned Sessions Judge, Bokaro.

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There are concurrent findings of two courts and there is no injustice done to the petitioners. It is well settled that if no injustice is done, in the garb of Section 482 Cr.P.C., the second revision is not maintainable.

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In view of the above facts, reasons and analysis, this petition is dismissed.

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(Sanjay Kumar Dwivedi, J.)

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Amitesh/-

Munshi Sharma v. the State of Jharkhand

Case brief

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Munshi Sharma v. the State of Jharkhand

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