SUNIL PATTANAYEK Vs. AJIT PATTANAYEK

JUDGEMENT

(1.) THIS revisional application has been preferred by the petitioners against the order dated 20. 12. 2003 passed by the learned Sessions Judge, paschim Midnapur in Criminal Revision No. 344 of 2003 confirming the order dated 03. 11. 2003 passed by the learned Sub-Divisional Magistrate, jhargram in M. R. Case No. 236 of 2003 under Section 133 of the Cr. P. C. The case of the petitioners is that the O. P. Nos. 1 and 4 herein filed a case under Section 133 Cr. P. C. before the learned Magistrate alleging that there is a public pathway on Plot No. 126, J. L. No. 208, Mouza-Gopiballavpur. It has been alleged in the petition under Section 133 Cr. P. C. that the present petitioners encroached upon the said public pathway. The learned magistrate vide order dated 25. 08. 2003 directed the B. L. and L. R. O. Gopiballavpur-l for causing' an enquiry as to whether there is any encroachment. Pursuant to the said order an enquiry was held and report was submitted by B. L. and L. R. O. , Gopiballavpur-l. The present petitioners who were O. Ps. in the proceeding under Section133 Cr. P. C. filed an objection against the said report. In the said objection the petitioners herein contended that there was a pathway but denied the same to be public one and claimed that the said pathway was used only by the owners of the disputed plot. The petitioners have been residing in the said plot for about 50 years. The petitioners in the said objection also denied that there was any encroachment on the said pathway. The learned Magistrate directed the S. D. L. and, L. R. O. , Jhargram to enquire into the matter and submit a report. The S. D. L. and L. R. O. submitted a report, but, the said report was vague and unspecific as to whether the said pathway was a public way. The petitioners wanted to file an objection against the said report of S. D. L. and L. R. O. , but, without giving any opportunity to the present petitioners, the impugned order dated 03. 11. 2003 was passed by the learned Magistrate directing the removal of the encroachment.

(2.) BEING aggrieved by the said order passed by the learned magistrate the present petitioners preferred a revisional application before the learned Sessions Judge, Paschim Midnapore being C. R. R. No. 344 of 2003. Learned Sessions Judge was pleased to dismiss the said revisional application vide order dated 20. 12. 2003. Being aggrieved by the said order passed by the learned Sessions Judge, the present petitioners have preferred the instant revisional application.

(3.) THE learned Advocate for the petitioners submits that there is no , mention in the report of the B,l. and L. R. O. and S. D. L. and L. R. O. that it was a public pathway and there is also no mention whether any encroachment was made on the pathway. It is contended that the learned Magistrate did not record any evidence of the parties in violation of the mandatory direction contained in Section 138 Cr. P. C. , as a result of which the entire proceeding was vitiated. It is contended that if it is a private pathway no proceeding under Section 133 Cr. P. C. can be drawn up. It is submitted that no opportunity was given to the present petitioners by the learned Magistrate to file written objection against the report. It has further been submitted that. the O. P. previously filed a title suit claiming Easement Right and the suit was dismissed ex-pane. It is contended further since Easement Right was claimed, obviously, it was claimed to a private pathway.