Vikash Kumar vs The State of Bihar

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.71209 of 2019
======================================================
Vikash Kumar son of Late Nageshwar Prasad @ Nageshwar Prasad Naresh
Resident of Village - Ward no. 5, Professor Colony, Ps- Madhepura, Dist-
Madhepura
... ... Petitioner/s
Versus
1. The State of Bihar
2. Sanjay Kumar Son of Shiv Narayan Yadav Resident of Village - Madhepura,
Ward No.5, P.S.- Madhepura, Distt.- Madhepura.
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Prafull Chandra Jha, Adv.
Mr. Keshav Kr. Jha, Adv.
Mr. Rahul Kumar, Adv.
Ms. Purnima Sharma, Adv.
For the Opposite Party/s : Mr. S.N. Yadav,Adv.
Mr. Suresh Kumar, Adv.
Mr. Arbind Kumar, Adv.
======================================================
CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
ORAL JUDGMENT
Date : 07-09-2026
Heard the parties.
2. The present quashing petition has been
preferred to quash the order dated 12.07.2019 passed by
learned Additional Sessions Judge-III, Madhepura in Cr. Rev.
No. 43 of 2018 (arising out of the order dated 04.10.2017
passed by the learned S.D.M., Madhepura in Miscellaneous
Case No. 520 of 2017) whereby and where under the
learned Additional Sessions Judge-III, Madhepura was
pleased to allow the revision petition preferred by the O.P.

Patna High Court CR. MISC. No.71209 of 2019 dt.07-09-2026
2/10
no. 2 and was pleased to set aside order dated 04.10.2017
passed by the learned S.D.M., Madhepura in Misc. Case No.
520 of 2017 which had been passed in favour of the
opposite party.
3. The dispute between the parties relates to a
passage measuring about nine feet, described as 14 Kari
Rasta, situated between the properties of the parties. The
case of the petitioner is that the said passage was left during
the lifetime of the father of the petitioner and opposite party
no. 3 for being used by both branches of the family and also
by the general public.
4. It is the specific case of the petitioner that the
said passage had been in use for several decades and that
the parties were using the same without any obstruction.
According to the petitioner, O.P. No. 2 and 3 subsequently
obstructed the passage by putting up a “Jafari”, thereby
preventing the petitioner, his family members and other
persons from using the passage.
5. It further appears from the materials on record
that an agreement dated 16.11.2011 was executed by O.P.

Patna High Court CR. MISC. No.71209 of 2019 dt.07-09-2026
3/10
No. 3 and his wife acknowledging the arrangement regarding
the use of the passage. Thereafter, on the application of the
petitioner, an enquiry was conducted by the revenue
authorities.
6. The report of the Karamchari dated 30.06.2017
recorded that a passage had been left at the spot with the
consent of the parties and that only about 7 to 8 feet of the
passage was available. Thereafter, the Circle Officer directed
the Anchal-Amin to conduct measurement of the land in
question.
7. The Anchal-Amin conducted measurement and
submitted his report dated 16.08.2017 along with a map.
The report indicated that only about 7 Kari of the passage
was available and that the remaining portion had been
covered by “Jafari”.
8. On the basis of the aforesaid materials, the
learned S.D.M., Madhepura initiated a proceeding under
Section 147 of Cr.P.C. in Misc. Case No. 520 of 2017. The
parties were noticed and heard. After considering the
materials available on record, the learned S.D.M. passed the

Patna High Court CR. MISC. No.71209 of 2019 dt.07-09-2026
4/10
order dated 04.10.2017 and directed the removal of the
obstruction from the passage.
9. Aggrieved by the aforesaid order, O.P. No. 2
preferred Cr. Rev. No. 43 of 2018 before learned Sessions
Judge, Madhepura, which was subsequently transferred to
the court of the learned Additional Sessions Judge-III,
Madhepura.
10. The learned Revisional court, by the impugned
order dated 12.07.2019, allowed the revision and set aside
the order passed by the learned S.D.M., principally observing
that the dispute between the parties was of a civil nature
and that such dispute could be decided only by a competent
Civil Court and further observing that order was passed
without explaining the satisfaction.
11. This Court has carefully considered the
impugned order as well as the order passed by the learned
S.D.M.
12. Section 147 of Cr.P.C. empowers an Executive
Magistrate to deal with disputes concerning the right of user
of any land or water, where such dispute is likely to cause a

Patna High Court CR. MISC. No.71209 of 2019 dt.07-09-2026
5/10
breach of peace. The provision is intended to provide a
preventive remedy and to enable the Magistrate to protect
an existing right of user until the parties obtain an
appropriate declaration from a competent Civil Court.
13. In the present case, the dispute was not
merely regarding the title or ownership of the land. The
immediate dispute before the learned S.D.M. was regarding
the alleged obstruction of a passage which, according to the
materials on record, had been used by the petitioner, his
family members and other persons for a considerable period
of time.
14. The learned S.D.M. had before him the report
of the Karamchari, the subsequent measurement report of
the Anchal-Amin and the map prepared pursuant thereto.
These materials prima-facie supported the case that a
passage existed at the spot and that a portion thereof had
subsequently been obstructed.
15. The learned S.D.M. also considered the
submissions of the parties and recorded his finding regarding
the long-standing use of the passage. Thus, it cannot be said

Patna High Court CR. MISC. No.71209 of 2019 dt.07-09-2026
6/10
that the order dated 04.10.2017 was passed without any
material or without jurisdiction.
16. The fact that the dispute may also involve civil
rights or that the parties may approach a Civil Court for final
determination of their title or easementary rights does not,
by itself, bar the exercise of jurisdiction under Section 147
Cr.P.C. The jurisdiction exercised by the Executive
Magistrate under Section 147 of Cr.P.C. is preventive in
nature and is directed towards maintaining peace in respect
of an existing right of user.
17. The learned Revisional court, in setting aside
the order of the learned S.D.M., has not properly considered
the nature of the proceeding under Section 147 Cr.P.C. It
has proceeded mainly on the ground that the dispute is of a
civil nature. Such an approach, in the facts of the present
case, is not sustainable.
18. The existence of a possible civil remedy cannot
render the proceeding under Section 147 of Cr.P.C. without
jurisdiction when the ingredients of the provision are
otherwise satisfied. The question before the learned S.D.M.

Patna High Court CR. MISC. No.71209 of 2019 dt.07-09-2026
7/10
was not to finally adjudicate the title of either party but to
consider whether there was a right of user of the passage
and whether obstruction of such right was likely to result in
breach of peace.
19. The materials referred to in the order of the
learned S.D.M. clearly show that there was a dispute
regarding the use of the passage and that obstruction had
been caused thereto. The dispute had also resulted in an
altercation between the parties and a criminal case was
registered in connection with the incident. Therefore, the
apprehension of breach of peace could not be said to be
without basis.
20. The Revisional court, while exercising its
jurisdiction, was required to examine the legality and
propriety of the order passed by the learned S.D.M. in the
context of the proceeding under Section 147 Cr.P.C. The
Supreme Court in Syed Shahnawaz Ali v. State of
Madhya Pradesh & Ors., 2025 INSC 1484 , has
reiterated the statutory nature of criminal revisional
proceedings and the need for the revisional court to deal

Patna High Court CR. MISC. No.71209 of 2019 dt.07-09-2026
8/10
with the matter in accordance with law.
21. In this connection it would be apposite to
reproduce the para no. 15 and 18 of Syed Shahnawaz
Ali case (supra), which is as under:-
15. The legal principles deducible from the
afore-quoted extracts may be summarised thus:
(a) revisional power under Cr. P.C. is a
discretionary power, the exercise of which
cannot be claimed as of right;
(b) exercise of revisional power is not entirely
dependent on who petitions the Court, inasmuch
as it can be exercised suo motu;
(c) the role of the revisionist is essentially that
of a person who invites attention of the Court
that an occasion to exercise the revisional power
has arisen;
(d) once a Rule is issued, ordinarily, that Rule
has to be heard and determined in accordance
with law, whether or not the petitioner is alive or
dead, or whether he is represented in court by a
legal practitioner; and
(e) the Court while exercising revisional power
discharges a statutory function of supervising
the administration of justice on the criminal side
and in furtherance thereof examines the
correctness, legality or propriety of an order
passed by the court subordinate to it.
18. In so far as substitution in place of the
deceased revisionist is concerned, there is no
specific provision in the Code for substitution.
Therefore, no one can claim substitution as of
right. However, what is important is that there is
no provision for abatement as well, as is there
for an appeal (see Section 394). Hence, once a
revision is entertained, in our view, the Court
exercising revisional power has discretion to
proceed with the revision and test the
correctness, legality or propriety of the order
under challenge before it, regardless of the
death of the person who had invoked the
revisional jurisdiction. However, while doing so,
the Court may, in its discretion, allow a person
to assist it in discharge of its statutory functions
provided that person has no conflict of interest.

Patna High Court CR. MISC. No.71209 of 2019 dt.07-09-2026
9/10
In that context, a victim of the crime would
ordinarily be the most suitable person to provide
assistance because of his interest in overturning
a decision that went against him. Therefore,
when revisional powers are invoked by a victim
of the crime, and he dies during pendency of the
revision, other victims of that crime, who fall
within the scope of its definition, as provided in
Section 2 (wa) of Cr. P.C., may be allowed to
assist the Court in effectively discharging its
statutory function. In that regard, the Court
would be well within its jurisdiction in granting
leave to such a person to pursue the revision.
However, in absence of a provision for
substitution, though a person may not have a
legal right to claim substitution as a revisionist,
there is no legal restriction on revisional court's
power in allowing a person to assist the Court in
furthering the cause of justice, more
particularly, when strict rule of locus does not
apply to a criminal revision.
22. In the present case, the learned revisional
court has failed to properly appreciate the scope of Section
147 of Cr.P.C. and has set aside the order of the learned
S.D.M. primarily on the ground that the parties have a civil
remedy. The impugned order, therefore, suffers from an
error of law.
23. It is made clear that this Court is not
adjudicating the title or ownership of the land in question.
The observations made herein are confined to the limited
question of the right of user of the passage in the context of
the proceedings under Section 147 of Cr.P.C.
24. The parties shall remain at liberty to approach

Patna High Court CR. MISC. No.71209 of 2019 dt.07-09-2026
10/10
the competent Civil Court for determination of their title,
ownership, easementary rights or any other substantive civil
rights, and any such proceeding shall be decided on its own
merits without being influenced by the observations made in
the present order.
25. Accordingly, the order dated 12.07.2019 as
passed by learned Additional Sessions Judge-III, Madhepura
in Cr. Rev. No. 43 of 2018 qua petitioner, is hereby quashed/
set aside, with all its consequential proceedings.
26. The application stands allowed.
27. Let the copy of judgment be communicated to the
learned trial court forthwith, with TCR, if any.


(Chandra Shekhar Jha, J)
Sudha/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 07.09.2026
Transmission Date 07.09.2026