ALAX FERNANDES Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE present application under section 482 of the Code of Criminal Procedure is directed against the judgment of the learned Sessions Judge, Panaji, dated 14th July, 1992 in Criminal Revision Application No. 6 of 1992 which has affirmed the judgment of the Executive Magistrate, Pernam, dated 17th January, 1992 in Case No. JM/mag/1/89 whereby the criminal proceedings under section 133 Cr. P. C. the learned Magistrate has made absolute the conditional order dated 12-1-1991 and directed the petitioner to remove laterite stones within seven days from the date of the order from a pathway allegedly existing in his property and allow an access of 3. 5 metres to the extent of the length of 19. 70 metres.

(2.) THE petitioner and others are the owners of a property situated at Tiracol village, Pernem Taluka, which is surveyed under Survey No. 60/30 of that village. On Alex DSouza who is running a bar in a property adjoining the said property made a complaint to the Executive Magistrate, Pernam, on 27-4-1989 alleging that the petitioner blocked a pathway allegedly passing through the petitioners property. On receipt of this complaint the Magistrate sent the same to the Police calling for a report on the subject-matter of the complaint. It appears that the Police after conducting some preliminary inquiry endorsed on the back of the same complaint a report to the effect that on the inspection of the site he had found that the petitioner has blocked the way with laterite stones keeping only a small way of about 1 foot to pass and that on inquiry he has learnt that by doing so he has obstructed the traditional way used for more than fifty persons. Not being satisfied with the said information supplied by the Police the learned Magistrate sent back the aforesaid complaint again to the Police with directions to the Police to investigate into the matter in the light of section 133 Cr. P. C. and thereafter submit a detailed report to him for further action. Pursuant to the said instructions the Police submitted to the Magistrate a report dated 6-6-1989 praying that on the facts of the case the learned Magistrate should take action against the petitioner under section 133 of Cr. P. C. in order to enable him to remove the obstruction and keep peace in the locality. On receipt of this report the learned Magistrate issued a conditional Order to the petitioner under section 133 Cr. P. C. on 26-6-1989.

(3.) THE petitioner raised in his written reply a preliminary objection to the jurisdiction of the Magistrate to intervene in the matter as the alleged pathway was purportedly located in a private property. After this reply no action was taken by the Magistrate on the aforesaid notice but on 2-1-1990 a second notice was issued by the Executive Magistrate to the petitioner calling upon him to remove the nuisance for the inhabitants of the village to go to the public well through the said pathway in order to draw water from the said well. The petitioner did not reply to this second notice and inspite of that no action was again taken by the Magistrate. Finally on 17-1-1991 the Magistrate issued to the petitioner, a third notice which was replied by him on 1-2-1991. In this reply the petitioner again raised a preliminary objection regarding the lack of jurisdiction of the Magistrate to entertain such proceedings under section 133 Cr. P. C. for the reason that there was no public right to be enforced. In the aforesaid reply the petitioner besides denying the existence of any public pathway through his property pointed out that the complainant had filed a bogus or false case as he wanted the compound wall of his property to be kept open so that the customers of his bar would go directly from the main road to the said bar by taking their cars and motor-cycles.