BRIJ KISHORE RAI Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) Heard learned counsel for the petitioner-Sri Kameshwar Singh appearing on behalf of respondent No. 3 and the learned A.G.A.

(2.) This petition under Art. 226 of the Constitution of India has been filed for quashing the order dated 4-5-2002 passed by Sub-Divisional Magistrate, Sikandarpur, district Ballia in Criminal Case No. 30 of 1997 making the conditional order under S. 133(1), Cr. P.C. absolute as well as the order dated 6-8-2002 passed by the Sessions Judge, Ballia in Criminal Revision No. 198 of 2002.

(3.) It appears that on the report of S.O., P. S. Pakari, district Ballia dated 11-9-1997 a proceeding under S. 133, Cr. P.C. was initiated against the petitioner on the ground that he had made encroachment on public path by causing obstruction to the public path. Considering the report of S.O., P. S. Pakari the learned Magistrate passed a conditional order dated 17-9-1997 under S.133(1), Cr. P.C. asking the petitioner to remove the encroachment, or if he objects so to do, to appear before him and show cause why the order should not be made absolute. The petitioner appeared before the Magistrate on 27-12-1997 and filed show cause alleging that disputed land was his Abadi land and he had not made any encroachment or obstruction on the public path and the proceeding under S. 133, Cr. P.C. could not be initiated. In support of his above denial he filed certain documents. The learned Magistrate also made local inspection of the spot. On the basis of local inspection note the learned Magistrate held that the petitioner had obstructed the public path by raising earth on it due to which the public path as well as flow of water of Nabdan had been blocked. With these findings he made the conditional order absolute vide order dated 4-5-2002.