PURNAMASI KAR Vs. PURANDAR KAR

JUDGEMENT

(1.) THIS revision is directed against an order passed under Section 133, Criminal Procedure Code The members of the second party are petitioners, The case of the first party is that he and the members of the second party have got residential houses in the bustee. The main village lane runs from east to west adjacent to that plot. There is a bi -lane nearby. The cowshed and house of the petitioner lie to the west of the bi -lane. Due to land dispute between the parties, the members of the second party have erected a mud -wall by the side of the cowshed of the first party which is a public passage. As such, the people of the locality as well as the cattle of the first party are obstructed from using the bi -lane and this has resulted in hardship to a great extent. Accordingly, the first party claims that the members of the second party have unlawfully obstructed the public road by putting the mud -wall over it. The members of the second party have denied the existence of any public road or public right over any road and contend that the mud -wall in question has been erected on their own land which is set apart as a lane for their own use, They have purchased the said land from the previous owner by a registered sale -deed dated 8.7.1968. They have also denied the plea of passage of the cattle of the first party through that land and the alleged public right over the same.

(2.) THE learned Magistrate while holding inquiry exercising his jurisdiction under Section 139 -A of the Criminal Procedure Code (old) has held that he is inclined to hold that the denial of public way or public right is a mere pretence and, therefore, he made the preliminary order absolute.

(3.) IF the order of the learned Magistrate and the procedure followed by him while exercising his power under Section 139 -A, Criminal Procedure Code are examined in the light of the above decisions it would appear that the learned Magistrate has wrongly exercised hie jurisdiction. He has not only recorded evidence, but has also allowed the other party to cross -examine the witnesses and after assessing the evidence he has held: