BISHWANATH THAKUR Vs. STATE

JUDGEMENT

(1.) This revision is directed against order of Sri S.C. Jain, learned Sessions Judge Ballia dated 23 -9 -80 in Criminal Revision No. 93 of 80 by which he allowed the revision and set aside the order of learned SDM dated 3 -7 -1980 and remanded the case for proceeding afresh in accordance with Sec. 133 of Code of Criminal Procedure.

(2.) It appears that the dispute relates to a passage running towards south of the house of revisionist who is alleged to have obstructed the same to the prejudice of one Jagat Narain who moved Police to initiate these proceedings. Report of Station Officer Police Station Bansdih in this connection is dated 23 -6 -78 under Sec. 133 of Code of Criminal Procedure. According to that report the revisionist who is a man of status constructed southern wall of his enclosure by encroaching on a portion of the way towards south ; that way was being used by residents of locality to fetch water ; that way has been narrowed down by construction of the wall. Vishwanath Thakur is alleged to have threatened Jagat Narain with a gun also on 14 -6 -78 ; on receipt of Police report learned SDM concerned drew a preliminary order under Sec. 133 Code of Criminal Procedure. In response to the notice served on revisionist he put in appearance and denied the existence of a public way on the spot; he further maintained that the door of Jagat Narain applicant used to open towards east and not towards south ; he also denied the allegations of encroachment.

(3.) Learned Magistrate found on the evidence recorded by him that there was no public way on the spot which could have attracted the operation of Sec. 133 Code of Criminal Procedure. Jagat Narain carried the matter in Revision No. 93 of 80 when learned Sessions Judge found that the Magistrate has misread the evidence ; he recorded the impugned order after setting aside the order of learned Magistrate dated 3 -7 -80.