BRAHMANAND RAI Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) This revision has been preferred against the judgment and order of Sessions Judge, Mau, The Sessions Judge has allowed the revision filed by the opposite party and set aside the order of the Magistrate making conditional order u/S. 133 of the Code of Criminal Procedure (hereinafter referred to as the Code) final.

(2.) The facts of the case are not much disputed. On the report of the Station Officer, Koopaganj, district Mau dated 6-8-1989 complaining that Swami Nath Rai has encroached public passage by keeping bricks across it, a conditional order was issued on 23-8-1989, asking Swami Nath Rai to remove the obstacle. He appeared on the date fixed and stated that no public passage existed. The opposite-party filed an application requesting the Magistrate to start proceedings u/S. 144 of the Code. The learned Magistrate had asked the Naib Tahsildar to make a local inspection. Swami Nath Rai was asked to produce evidence regarding denial. Besides other evidence, he had filed copy of complaint regarding a suit filed by him. The learned Magistrate did not accept documentary evidence relating to denial produced by the opposite-party. Hence he made the conditional order final and asked Swami Nath Rai to remove obstruction in the passage.

(3.) Swami Nath Rai filed a revision before the Sessions Judge. The Sessions Judge held that Suit No. 22 of 1990 was in respect of passage in dispute. He had held that, as long as the suit was pending, the case u/S. 133 of the Code could not proceed. He also held that the evidence regarding denial was sufficient. There could be no other better evidence than the suit itself. It was, therefore, held that the learned Magistrate had erred in confirming the conditional order. On the above observations, the impugned order was passed.