HARNARAYAIN & OTHERS Vs. BHAGIRATH JATAVA & ANOTHER

JUDGEMENT

(1.) This petition has been preferred under Section 482 of Cr.P.C for quashing the proceedings under Section 133 of Cr.P.C., before the SDM Bhind in Case No.32/08 X 133.

(2.) The brief facts of the petition are that the respondent No.1 filed an application under Section 133 of Cr.P.C before the SDM, Bhind. It is submitted by the learned counsel for the petitioners that the house of the petitioners and respondent No.1 are nearby and in between them there is empty place. The door of the respondent No.1 house is on the west side and door of the petitioners is towards the north side. It is further stated that in the west side, there is wall and hand pump and there is a way to reach. It is further stated that Harnarayain has purchased the open land from other person and constructed the wall, blocking the way, therefore, it is prayed that the obstruction may be removed and the way should be opened. The report from the Police Station and Additional Tahsildar was sought and was filed and learned Magistrate has passed an order for removal of the wall forthwith. The same was challenged before the ASJ, Bhind by preferring a Criminal Revision No.46/2008 and the revision has been dismissed vide order dated 01.05.2008. Being aggrieved of the same, this petition has been preferred.

(3.) Learned counsel for the petitioners submits that from the registration of the case under Section 133 of Cr.P.C presupposed the public nuisance while in present case there is no public nuisance and it is private land. The disputed land is not public way, the said land was owned by Hom Singh and the petitioner purchased the same from Hom Singh and constructed there on, which is very old. The respondent No.1 has no right to get the way on the said land. It was the duty of the trial Court to decide the case after taking evidence of both the parties. Learned SDM has erred in passing the order under Section 142 of Cr.P.C and the learned First ASJ has also erred in confirming the same, therefore, it is prayed that the proceedings under Section 133 of Cr.P.C before the SDM, Bhind be quashed.