BHANJAN ALIAS BHAJAN KUMAR BISWAS Vs. SIBENDRANATH BISWAS

JUDGEMENT

(1.) This revisional petition is directed against the order passed by the learned Additional Sessions Judge, 1st Court, Nadir on 31.8.84 in Criminal Motion No. 34 of 1984 whereby he set aside the order passed by learned Executive Magistrate on 10. 4.84 in MP No. 279 of 80 which was a proceeding under section 133 of the Code of Criminal Procedure.

(2.) The 1st party Bhajan Kumar Biswas for self and on behalf of others filed a petition under section 133 of the Code of Criminal Procedure before the learned Executive Magistrate, Krishnanagar, Nadia alleging that there was a public pathway passing through plots no. 1165, 1181, 1180, 1179, 1173, 1183, 1182, 1163 and 1164 of Mouza Raninagar connecting the main road on the north in plot no. 755 and the road on the south in plot no. 760, that on 3.11.80 the members of the 2nd party blocked the said pathway in between plots no. 1178 and 1183 by erecting brick wall thereby causing inconvenience to the public in general and the residents of that Locality in particular. On receipt of such petition, learned Executive Magistrate directed the Officer-in-Charge, Tehatta P.S. to enquire and report. On receipt of the report from the said Officer-in-Charge, learned Executive Magistrate by his order dated 27.1.81 drew up a proceeding under section 133 of the Code of Criminal Procedure against the members of the 2nd party asking them to show cause as to why they should not be ordered to remove the obstruction created by them on the said pathway and they were asked to show cause by 27.2.81. The members of the 2nd party appeared before the learned Executive Magistrate and subsequently filed a petition showing cause denying the existence of the said public pathway. Thereafter learned Executive Magistrate, to whom the case was transferred for disposal, directed JLRO, Tehatta to enquire and report and he axed 21.5.82 for enquiry report. On receipt of report from the said JLRO, learned Executive Magistrate fixed 24 2 83 for evidence by the 2nd party. However, by his order dated 13 6 83 he fixed 27.7.83 for evidence of the both parties and for judgment. Thereafter he examined four witnesses for the 1st party and none for the 2nd party. By his order dated 10.4.84, he passed the order under section 133 directing the members of the 2nd party to remove the obstruction from the plots no. 1178 and 1183 and to make the road clear for free movement of the public within one month.

(3.) Being aggrieved by such order of the learned Executive Magistrate, the members of the 2nd party filed a Criminal Motion being Motion no. 34 of 1984 before the learned Sessions Judge, Nadia challenging the legality and propriety of the said order. The learned Addl. Sessions Judge who heard the said Criminal Motion, allowed the same and set aside the order passed by the learned Executive Magistrate with the findings that learned Executive Magistrate did not properly follow the procedure laid down under section 133 and 137 of the Code of Criminal Procedure, that he ought to have considered whether the way which was claimed by the 1st party could be lawfully used by the public and that evidence adduced was not sufficient for coming to a conclusion that there was any pathway which could not lawfully used by the public.