ABHIMANYU PRASAD OJHA Vs. STATE OF U.P.

JUDGEMENT

(1.) Heard Shri Sanjay Tripathi, Advocate holding brief of Shri Anil Kumar Tripathi, learned counsel for the petitioners in Criminal Misc. Writ Petition No.- 15379 of 2019 and learned counsel for the petitioners in Criminal Misc. Writ Petition No.- 171721 of 2019, Shri Rajesh Kumar Shukla, learned State Counsel and Shri Santosh Kumar Gupta, learned counsel for the private respondent in both the petitions.

(2.) Criminal Misc. Writ Petition No. 15379 of 2019 has been filed assailing the order dtd. 30/11/2018 passed in Case No. 80 under Sec. 133 of Code of Criminal Procedure (hereinafter referred as Cr.P.C.) by Sub-Divisional Magistrate, Tarabganj, District-Gonda and the judgment and order dtd. 21/5/2019 passed in Criminal Revision No. 318 of 2018; Rajkishore Ojha (Deceased) substituted by legal heirs Abhimanyu Prasad Ojha and others vs. State of U.P. and another and Criminal Misc. Writ Petition No. 17172 of 2019 has been filed assailing the order dtd. 30/5/2019 passed by the Sub Divisional Magistrate, Tehsil-Tarabganj, District-Gonda, by means of which he has directed to the In-charge Inspector, Dehat Kotwali, Gonda for compliance of the order dtd. 30/11/2018 in pursuance of the order dtd. 21/5/2019 passed by the Session Judge Gonda. Thus, both the petitions have been clubbed together and are being decided by this common judgment and order.

(3.) Learned counsel for the petitioners submitted that in view of the report submitted by the Tehsildar, Tarabganj, District Gonda, there was no dispute between the petitioners and the private respondent and the public way was not restrained by the petitioners, but without considering it, the learned Sub-Divisional Magistrate passed the impugned order dtd. 30/11/2018 on the ground that in case in future any construction is raised by the predecessor-in-interest of the petitioners i.e. Rajkishore Ojha, then the public way will be disturbed. Thus, the order has been passed merely on presumption that the public way will be disturbed in future, whereas on the basis of mere presumption that the public may be disturbed in future, the order cannot be passed under Sec. 133 Cr.P.C. He further submits that during pendency of the revision, the revisional court also passed the impugned judgment and order dtd. 21/5/2019, without considering the grounds raised by the petitioners. He further submitted that during pendency of the Criminal Misc. Writ Petition No. 15379 of 2019, the order passed by the learned Sub Divisional Magistrate and learned Sessions Judge, the Sub-Divisional Magistrate, Tarabganj, District-Gonda directed to the In-charge Inspector for compliance of the order passed by him, whereas the same could not have been issued, therefore Criminal Misc. Writ Petition No. 17172 of 2019 was filed. Thus, the submission is that the impugned judgment and orders are not sustainable in the eyes of law and liable to be set aside by this Court.