DAMODAR JENA Vs. SANJAYA CHANDRA VERMA

JUDGEMENT

(1.) The first party members in a proceeding Under Section 133 of Cr.P.C. are in the petitioners, challenging the revisiona! order passed by the learned Sessions Judge, Cuttack remanding the matter to the Sub -Divisional Magistrate, Cuttack for an enquiry Under Section 137, Cr.P.C.

(2.) A proceeding Under Section 133 of the Code of Criminal Procedure was initiated by the Sub -Divisional Magistrate at the instance of the first party -petitioner. The claim of the first party was that the disputed plot No. 1529 even though has been recorded in the name of the second party members in the Consolidation record of rights, it is a road corresponding to plot No. 1332. It is further alleged that during the consolidation operation, there was exchange of plots between the first party and the second party members and in pursuance of that exchange, it was agreed that the first party would use the disputed plot as road. Dispute having arisen FIR was lodged and also a proceeding Under Section 147 Cr.P.C. was taken up. Subsequently, on the allegation that the second party obstructed the plot by putting a fence, which creates nuisance, he filed a petition to initiate a proceeding Under Section 133, Cr.P.C, The second party filed its objection on receiving the notice, and inter alia pleaded that there was never any agreement that the first party will have a right to use the disputed plot as a road inasmuch as the plot in question is their private property and used by them as a private road. It was also pleaded that the first party has his own road adjoining to eastern side of his house in plot No. 1459 connecting to the public road in plot No. 1542. The learned Sub -Divisional Magistrate restrained the second party members. Being aggrieved, the second party members preferred Criminal Revision No. 685 of 1994 in this Court and by order dated 25.11.1994, the order was vacated and the learned Sub -Divisional Magistrate was directed to hear the matter afresh. Undisputedly, on 3.12.1994, the second party members instituted Title Suit No. 147 of 1994 in the Court of the Civil Judge (Junior Division), Second Court, Cuttack for declaration that the proceeding initiated Under Section 133, Cr.P.C. is illegal and that the firs! party has no right of way over the disputed plot, but the learned Magistrate proceeded with the matter and decided against the second party members. The present impugned revision was filed by the second party members.

(3.) SRI N.C.Mohanty, learned counsel for the petitioner contends that the impugned order of the learned Sessions Judge is erroneous in law and cannot be sustained since the enquiry directed to be conducted Under Section 137, Cr.P.C. is beyond the scope of the revision inasmuch as contrary to the direction of the High Court in the earlier criminal revision. Section 133 of the Code of Criminal Procedure contemplates that a Magistrate specially empowered in this behalf by the State Government, on receiving the report of a Police Officer or other information and on taking such evidence as he thinks fit if he considers that any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel which is or may be lawfully used by the public etc., may make a conditional order requiring the person causing such obstruction or nuisance or carrying on such trade or occupation etc. to remove such obstruction or nuisance or resisting from or carrying on such nuisance.