VICENT J CARDOZO Vs. STATE

JUDGEMENT

(1.) The applicant Vicent J. Cardozo filed this revision application against the judement and order of the Sub-Divisional Magistrate, Goa North Division Panaji, dated 22-4-71 passed under Section 133 of the Cr. P. C. for the removal of a wall and the order in revision passed by the Additional Sessions Judge, Mapusa on 13-7-72 dismissing the revision application filed against the order of the Sub-Divisional Magistrate, Goa North Division, Panaji.

(2.) The Police made a report to the Sub-Divisional Magistrate that the petitioner had built a wall and obstructed the public way giving access to the bank of the river. The Learned Sub-Divisional Magistrate made a conditional order on 9-2-71 under Section 133 Cr. P. C. and issued a notice to the petitioner to show cause why the order should not be made absolute. The petitioner appeared before the Sub-Divisional Magistrate on 22-2-71 and denied the existence of any public right in respect of the way. He further stated in the written application, which he produced on 22-2-71, when he appeared before the Magistrate, that the wall in question was existing there for a number of years to protect illegal entry into his property. He further stated in his application that he was enclosing in the said application a certificate issued by the "Regedor" of the Village that there was no passage for the members of the public. Such a certificate cannot now be traced in the file of the proceedings of the Magistrate and also there is no endorsement made in the application submitted by the petitioner on 22-2-71 when the application was presented to the effect that the certificate of Regedor was not presented along with the application, though there is an endorsement on the application acknowledging its receipt. The Sub-Divisional Magistrate, therefore, adjourned the case "for evidence". On 6-4-71 the Learned Magistrate recorded the evidence on behalf of the Respondent No 2. on 22-4-71 he made a local inspection and prepared a report of the inspection and on the same day he passed the impuged order. The learned Sub-Divisional Magistrate states that the petitioner did not lead any defence evidence.

(3.) The order of the Learned Magistrate dated 22-4-71 which is impugned by this revision application is very short. The findings of the Magistrate are containing in paragraph 3 of the order. It runs over about 8 lines. That paragraph speaks only about the construction of the wall, locking of the way and inconvenience caused by such obstruction. The only sentence that casually makes reference to the use of the way by the residents reads as follows:-