RAM DAYAL Vs. STATE OF U P

JUDGEMENT

(1.) THIS is an application under Section 482 CrPC praying that the order of the Sub-Divisional Magistrate, Fatehabad, Agra dated 30-12-1976 and the order of the Sessions Judge, Agra dated 28-2-1977 be quashed.

(2.) A preliminary order under Section 133 CrPC was passed on 22-5-1977 by the Sub-Divisional Magistrate, Fatehabad in which it was stated that he had been informed that the applicants had obstructed a public way of constructing a wall and directed the applicants to remove the said obstruction from the public way. It appears that the applicants filed an objection in which they denied the existence of the public way and also stated that they had not placed any obstruction in the public way. The learned Magistrate, by his order dated 23-9-1976, rejected the objection of the applicants denying the existence of the public way. He thereafter directed the Block Development Officer to make a local inspection and to submit his report. The report of the Block Development Officer dated 5-11-1976 shows that he was unable to determine as to whether the applicants had obstructed the public way. It appears that the learned Magistrate relied on the report of the Supervisor Kanoongo which was submitted before the preliminary order under Section 133 CrPC was passed and without recording any evidence held -that the applicants had obstructed the public way and directed the applicants to remove the obstruction from the public way within one month by his order dated 30-12-1976.

(3.) THIS application is accordingly allowed and the order of the Sub-Divisional Magistrate, Fatehabad, Agra dated 30-12-1976 and the order of the Sessions Judge, Agra dated 28-2-1977 passed in revision are set aside. Application allowed.