MOHD AUSAPH Vs. MOHD SHAHID

JUDGEMENT

(1.) THIS is a petition, under Section 482 of the Code of Criminal procedure (for short "the Code"), for quashing the proceedings under section 133 of the Code, initiated upon the complaint made by the respondents no. 1 and 2, to this effect that by encroaching upon a public way, he had created public nuisance. The subject matter of alleged public nuisance is the construction made on the disputed land situated on Bhopal-Sagar Road in Begumganj. The background facts, as projected by the petitioner, may be summarized as under:

(2.) ACCORDINGLY, the learned Additional District Judge, fell into an error by directing an inquiry under Section 138 of the Code, despite the fact that in the light of the preliminary objection, as to the existence of public way on the disputed land, the Magistrate was required to make an inquiry under section 137 (1) of the Code before proceeding under Section 138 of the code.

(3.) IN the result, the prayer for quashing the proceedings is hereby rejected. However, the revisional order is modified and the Magistrate is directed to first make an enquiry as contemplated under Section 137 (1) of the Code and in such inquiry, if he finds that there is any reliable evidence in support of denial of the existence of public way on the disputed land, he shall stay the proceedings until the matter of existence of such right is decided by the Civil Court, and if he finds that there is no such evidence, he shall proceed in accordance with Section 138 of the Code. The petition, is, accordingly, disposed of.