Patna High Court
Jawahar Singh vs The State Of Bihar on 16 July, 2026
Author: Chandra Shekhar Jha
Bench: Chandra Shekhar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.42212 of 2019
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JAWAHAR SINGH Son of Ram Kishun Singh Resident of Village -
Maheshkhunt, Baboo Tola, P.S.- Maheshkhunt, District - Khagaria
... ... Petitioner
Versus
1. The State of Bihar
2. Chhathoo Singh Son of Late Deep Narayan Singh Resident of Village
- Baboo Tola Maheshkhunt, P.S.- Maheshkhunt, District - Khagaria
... ... Opposite Party
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Appearance :
For the Petitioner/s : Mr.Sushil Kumar Jha, Advocate
For the Opposite Party/s : Mr.Anand Kishore Choudhary, APP
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CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
ORAL JUDGMENT
Date : 16-07-2026
Heard learned counsel appearing on behalf of the
petitioner and learned A.P.P. for the State.
2. The present application has been filed against the
impugned order dated 04.05.2019 passed by learned Sessions
Judge, Khagaria in Cr. Rev. No. 34/2018, whereby and
whereunder learned Sessions Judge has been pleased to allow
the revision application filed by the O.P. No. 2 against the order
dated 13.03.2018 passed by learned Sub-Divisional Magistrate,
Gogari in Case No. 781(M)/2017, whereunder Circle Officer,
Gogari and S.H.O., Maheshkhunt P.S. has been directed to
remove the obstruction over path/Rasta. The Magistrate has
further been pleased to direct that if there is encroachment over
public land, the same be removed in the light of order passed in
Patna High Court CR. MISC. No.42212 of 2019 dt.16-07-2026
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C.W.J.C. No. 4309/2015 by the High Court on wrong and
erroneous assumption of facts and laws as well.
3. The petitioner had filed a complaint to the Circle
Officer, Gogari on 24.03.2017, stating therein that O.P. No. 2 is
making obstruction over the Gair Mazarua Khesra No. 456,
Tauzi No. 525, Mauza Maheshkhunt, which is only the path
(Rasta) and thoroughfare of the petitioner.
4. It is submitted by learned counsel appearing for the
petitioner that on the basis of aforesaid written complaint, the
Circle Officer, sought for a report on the same day from Halka
Karamchari, through Circle Inspector in terms of Annexure '1'
whereafter, on the basis of spot enquiry, the Halka Karamchari
and the Circle Inspector jointly reported vide report dated
28.03.2017
that the land in question is “Gair Mazarua Khas”
being obstructed by the O.P. No. 2, who is claiming that his
right over the land in question is to purposefully obstruct the
path (rasta).
5. It is further submitted that O.P. No. 2 has obstructed
the road of the petitioner whereupon the Circle Officer has been
pleased to communicate the matter to the S.H.O. and open the
record of encroachment. It is submitted that office order as
contained in letter no. 522 dated 30.03.2017 has been issued
Patna High Court CR. MISC. No.42212 of 2019 dt.16-07-2026
3/6under the signature of Circle Officer enclosing the report dated
28.03.2017 (Annexure ‘3’), whereby the S.H.O. Gogari has
been requested to take appropriate action according to the
report.
6. It is submitted that on the basis of aforesaid, the
Circle Officer has also initiated the proceeding for removal of
encroachment and accordingly, issued notices to both the parties
vide notice dated 10.06.2017, 22.06.2017 and 28.07.2017,
which became futile. Ultimately, the Circle Officer
recommended to the learned S.D.M. for initiation of proceeding
under section 133 of the Cr.P.C. vide letter No. 1343 dated
12.09.2017, wherein the order was passed on 13.03.2018
directing to remove the obstruction and if it found that there is
any encroachment on public land, same be removed
immediately also with a direction to put up the record on
25.04.2018 for further proceeding.
7. In the background of all such developments, the legal
issue, which was raised by learned counsel for the petitioner is
that the order, which was challenged by O.P. No. 2 before the
court of learned Sessions Judge, Khagaria by way of Criminal
Revision, wherein the order dated 13.03.2018 as passed by
S.D.M., Gogari was set-aside, taking note of the fact that no
Patna High Court CR. MISC. No.42212 of 2019 dt.16-07-2026
4/6evidence, as required under section 138 of the Cr.P.C., was
taken during the proceeding. The order passed under Cr. Rev.
No. 34 of 2018 dated 04.05.2019 as passed by learned Sessions
Judge, Khagaria is bad in the eyes of law as filing of any
criminal revision against the interlocutory order is barred under
Section 397(2) of the Cr.P.C.
8. At this stage, it would be apposite to reproduce the
provision of Section 397(2) of the Cr.P.C., which reads as under:
“397(2). The powers of revision conferred by sub-section
(1) shall not be exercised in relation to any interlocutory
order passed in any appeal, inquiry, trial or other
proceeding.”
9. It would further be apposite to reproduce para 102 of
the legal report of Hon’ble Supreme Court as available through
State of Haryana and Ors. Vs. Bhajan Lal and Ors [(1992)
Supp (1) SCC 335], which are as under:
“102. In the backdrop of the interpretation of the various
relevant provisions of the Code under Chapter XIV and of
the principles of law enunciated by this Court in a series of
decisions relating to the exercise of the extraordinary power
under Article 226 or the inherent powers under Section 482
of the Code which we have extracted and reproduced
above, we give the following categories of cases by way of
illustration wherein such power could be exercised either to
prevent abuse of the process of any court or otherwise to
secure the ends of justice, though it may not be possible to
lay down any precise, clearly defined and sufficiently
channelised and inflexible guidelines or rigid formulae and
to give an exhaustive list of myriad kinds of cases wherein
such power should be exercised.
(1) Where the allegations made in the first
information report or the complaint, even if
they are taken at their face value and accepted
in their entirety do not prima facie constitute
Patna High Court CR. MISC. No.42212 of 2019 dt.16-07-2026
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accused.
(2) Where the allegations in the first
information report and other materials, if any,
accompanying the FIR do not disclose a
cognizable offence, justifying an investigation
by police officers under Section 156(1) of the
Code except under an order of a Magistrate
within the purview of Section 155(2) of the
Code.
(3) Where the uncontroverted allegations made
in the FIR or complaint and the evidence
collected in support of the same do not disclose
the commission of any offence and make out a
case against the accused.
(4) Where, the allegations in the FIR do not
constitute a cognizable offence but constitute
only a non-cognizable offence, no investigation
is permitted by a police officer without an
order of a Magistrate as contemplated under
Section 155(2) of the Code.
(5) Where the allegations made in the FIR or
complaint are so absurd and inherently
improbable on the basis of which no prudent
person can ever reach a just conclusion that
there is sufficient ground for proceeding
against the accused.
(6) Where there is an express legal bar
engrafted in any of the provisions of the Code
or the Act concerned (under which a criminal
proceeding is instituted) to the institution and
continuance of the proceedings and/or where
there is a specific provision in the Code or the
Act concerned, providing efficacious redress
for the grievance of the aggrieved party.
(7) Where a criminal proceeding is
manifestly attended with mala fide and/or
where the proceeding is maliciously
instituted with an ulterior motive for
wreaking vengeance on the accused and with
a view to spite him due to private and
personal grudge.”
10. On perusal of the record, it transpires that order
dated 13.03.2018 appears interim in nature as it not appears
conclude the proceeding finally, as the next date of hearing was
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fixed for 25.05.2018.
11. Considering aforesaid, the revision as preferred
against the aforesaid order, in furtherance of which the
impugned order was passed by the learned Sessions Judge,
Khagaria is bad in the eyes of law in view of the provision as
available under section 397(2) of the Cr.P.C. as same appears
legally barred in terms of “principle no. 6” as laid down in
Bhajan Lal‘s case (supra), the impugned order as passed by
learned District Judge, Khagaria is hereby quashed/set-aside.
12. Accordingly, this application stands allowed.
13. The parties are free to join the pending proceedings
of Case no. 781(M)/2017 before S.D.M., Gogari, District –
Khagaria, if so required.
(Chandra Shekhar Jha, J)
Rajeev/-
AFR/NAFR NAFR CAV DATE NA Uploading Date 16.07.2026 Transmission Date 16.07.2026
