JOGRAJ Vs. STATE OF U P

JUDGEMENT

(1.) The applicant has come forward with a prayer that the judgment and order dated 30-6-1982 passed by the Magistrate and the judgment and order dated 28.1.1983 passed by the Sessions Judge may be quashed. The matter relates to a proceeding under Section 133, Criminal Procedure Code. On 23-10-1979 the Magistrate passed an order that Jograj and Rampal by constructing their Chabutras in front of their houses have obstructed the public passage and directed that they should show cause why the Chabutra should not be removed, otherwise the final orders will be passed. The present application has been preferred by Jograj. Vide judgment Annexure 11311 the Magistrate observed that the Station Officer has submitted report dated 26-8- 1979 that the public passage is 250 yards long and 70 yards wide and Jograj has constructed 3 yards wide and 12 yards long Chabutra thereon; while Rampal has constructed 3 yards wide and 9 yards long Chabutra thereon obstructing the public passage. Thereafter the Magistrate discussed the evidence. Jograj, as would be born out from the judgment, did not dispute to existence of a public path. He, however, maintained that his Chabutra in front of his house is 20-25 years old and it is the other person Rampal who has constructed a new Chabutra and blocked the passage. From the perusal of the judgment it would further appear that the existence of the public path was not disputed. The only dispute raised was which person has obstructed that passage by construction of the Chabutra. There was no denial of the public right as such, so the Magistrate after recording such finding rightly proceeded under Section 138, Criminal Procedure Code. After discussing the entire evidence on record the Magistrate has come to a conclusion that Jograj has also obstructed the public path and regarding Jograj he passed a very clear final order that he should remove that Chabutra, 3 yards wide and 12 yards long on the public path. Rampal was also called upon to remove his Chabutra obstructing the public path, giving its dimension.

(2.) Aggrieved by such order Jograj preferred a revision. Rampal also preferred a revision. Both revisions were dismissed by the Additional Sessions Judge and the order of the Magistrate was upheld.

(3.) It is being urged in the petition under Section 482, Criminal Procedure Code during arguments that in the preliminary order itself the dimention of the Chabutra of the applicant was not given, hence the final order stands vitiated. Reliance in that connection is placed upon the case of State v. Bal Kishan Singh1. It was laid down in that case that unless joint responsibility is alleged and it is stated that all the persons involved are jointly responsible, it is essential that the order should state specifically with regard to each person the specific obstruction made by him.