ANAND KISHORE Vs. STATE

JUDGEMENT

(1.) SURESH Chand, a resident of village Muradpur Jaunpura, made an application against Ram Narain and others for proceedings being initiated under Section 133, Cr. P. C. The application was sent to the Tahsildar for enquiry and the Sadar Kanungo of Circle Garh submitted a report to the effect that Ram Narain and others had removed their unauthorised encroachment, but the encroachment was made by Anand Kishore. upon an area of five Biswas five Biswansis of plot No. 326 which was a public-way. Notice under Section 133, Cr. P. C. was issued against Anand Kishore on 24th November, 1970, and he was directed to remove the said encroachment within fifteen days of the receipt of notice or to show cause why the order be not enforced. In response to this notice Anand Ki-shore filed a written statement alleging that Akhora, Bitoras and Kolhu had been set up in plot No. 326, area five Biswas five Biswansis. since the time of Zamindari Abolition and that one Bigha one Biswas land of the said plot was a public way which still existed. In other words, it was denied that any encroachment was made by him on the public way which was said to have been existing as before.

(2.) EVIDENCE, both oral and documentary, was led on behalf of the parties and the learned Magistrate after considering it confirmed the conditional order, dated 24th November, 1970, and directed' Anand Kishore to remove his Akhora and Bitoras from an area of five Biswas five Biswansis in plot No. 326 within a period of one month failing which they were to be removed according to Rules.

(3.) ANAND Kishore went up in revision before the learned Sessions Judge against the order of the Magistrate and two objections were raised before him. Firstly, it was pointed out that the learned Magistrate had failed to question Anand Kishore whether he denied the existence of public right of way. The second contention was that the Magistrate had no jurisdiction to proceed under Section 137 (1), Cr. P. C without holding the enquiry contemplated under Section 139-A, Cr. P. C.