RASAMAYEE DAS Vs. NAKUL CH. DEB

JUDGEMENT

(1.) THIS criminal reference is by the learned Sessions Judge. Lakhim pur recommending to quash an order passed under Section 133. Criminal Procedure Code. or in the alternative to remand the case to the Magistrate for disposal in accordance with law.

(2.) THE proceeding under Section 133. Cr. P, C was drawn up by the Magistrate on 21st March 1968 on an application by the first party consisting of three applicants having their residential houses close to one another in Dag No. 1248 of Periodic Patta No. 437 of Tinsukia town since 35 years. It is alleged that a oath of 12 feet in breadth in front of their houses which adjoins the main road. described as Khageswar Road on the northern side. was obstructed by closing it by the opposite parties by constructing a brick wall 50 feet in length. The closure of the above path totally put a stop to their being able to communicate with the main road putting them in great distress. The Chairman. Development Authority. Tinsukia, passed a strict order directing the opposite parties not to construct a brick wall in that manner but the order was disregarded.

(3.) IN the present case. the learned Magistrate did not approach the matter in conformity with the procedure laid down under Section 139 A with a view to find out from the evidence of the opposite party as to there being any reliable evidence in support of the denial of the existence of the public right. This is not even a case where in the final order he has answered all the points required to be dealt with under the law. On the other hand, the points for determination which the learned Magistrate set out in his order betray ignorance of the procedure laid down and this has introduced a serious infirmity in the order in the case.