SATYA SUNDAR GHOSE Vs. SAILENDRA KINKAR PAL

JUDGEMENT

(1.) THIS Rule was issued at the instance of a first party who prayed before the Magistrate that a 'Rasta' or thoroughfare for the use of the public had been obstructed by the opposite parties. As that was also the way to first party's own house he prayed to the Magistrate to take action. It seems that action was asked for under Section 147, Criminal P. C. Obstruction of a public thoroughfare being a public nuisance action should have been taken under Section 133 of the Code. The result was that as more than 3 months elapsed before the Magistrate actually drew up proceedings from the date of complaint, the Magistrate subsequently dismissed the application on the ground of 3 months' limitation as mentioned in the proviso to Section 147, Clause (2), Criminal P. C. The Magistrate has carefully recorded that he is passing no opinion whatsoever on the merits of the case. The Magistrate applied the wrong section in initiating proceedings and therefore the order cannot stand. There is no period of limitation fixed as far as Section 133 of the Code is concerned.

(2.) IN the circumstances the order of the learned Magistrate is set aside and the case is remanded for being considered under Section 133, Criminal P. C. after drawing up proper proceedings under that section.