MT. ISMATAN NESSA Vs. SARAT CHANDRA BARUA

JUDGEMENT

(1.) THIS revision petition is directed against the judgment and order passed by the learned Magistrate, Judicial, Gauhati, dated 29 -6 -1974 in Misc. Case No. 121 of 1970.

(2.) THE opposite party Sri Sarat Chandra Barua filed a petition before the Officer -in -Charge, Chandmari Police Out Post, Gauhati, with a copy enclosed to the Deputy Commissioner, Kamrup. On receipt of the petition the police registered a non - F. I. R. case under Section 147, Criminal P.C. and took up investigation. The Deputy Commissioner ordered for attachment of the land over which the first party claimed right of user, apprehending breach of peace. The police attached the disputed land and submitted report for drawing up a proceeding under Section 147, Criminal P.C. (old). The learned Magistrate (E), drew up a proceeding and called upon the parties to put in their written statements etc. in support of their respective claims. Both parties filed their written statements. The first party filed some documents and the second party also filed certain affidavits. On consideration of the evidence on record, the learned Magistrate Judicial, to whose file the case was transferred for adjudication, found that the disputed land is a road which is used by the first party. Therefore, he passed the impugned order by which the second party, that is, the present petitioner was prohibited from interfering with the exercise of the right of user by the opposite party over the disputed land until and unless otherwise directed by a competent Civil Court. Against the said order passed by the learned Magistrate the present petition has been preferred. Mr. B. K. Goswami, the learned Counsel appearing on behalf of the petitioner submits that when there is a finding recorded by the learned. Magistrate that the disputed land is a public path, which finding he cannot challenge, the proper procedure which should have been followed by the learned Magistrate was to draw up a proceeding under Section 133 Criminal P.C. The initiation of the proceeding under Section 147 Criminal V. C. is misconceived according to the learned Counsel. In order to appreciate the arguments advanced by the learned Counsel, it is better to notice Sections 133 and 147, Criminal P.C. Section 147 Criminal P.C. so far relevant for the purpose of deciding this petition read as follows:

(3.) MR . Goswami submits that when there is a finding that the disputed land is a public path, the only course which was open to the learned Magistrate was to draw up proceedings under Section 133 of the Code and a private individual could not invoke the jurisdiction of the Court under Section 147, Criminal P, C. so as to exercise right of way over the public path. In support of his submission the learned Counsel refers to the following decisions: Satya Sundar v. : AIR1954Cal560 and Bhubaneswari v. Kaliram reported in . In the Calcutta case, an obstruction was placed by the opposite party in the thoroughfare for the use of the public. There (he learned Magistrate drew up a proceeding under Section 147, Criminal P, C The Court held that when there was obstruction on the public thoroughfare or public place, for the removal of the same, the proper course was to take resort to Section 133 and a proceeding under Section 147, Criminal P.C. was not competent.