KHIROD MOHAN DAS Vs. OFFICER

JUDGEMENT

(1.) Heard Mr. J.M. Choudhury, learned Senior Counsel for the petitioner, and Mr. Z. Alam, learned Counsel for the opposite party.

(2.) The material facts leading to this revision may, in brief, be described thus: On 23.10.2006, the petitioner herein made, as first party, an application before the District Magistrate, Kamrup (Metropolitan) District, Guwahati, seeking drawing of a proceeding under Sec. 133, Cr. P.C. against the opposite party herein, as second party, and directing the second party to remove the obstruction caused by the second party by raising a barrier on the road, described in the said application. This application was sent to the police for report. A report was accordingly submitted by the police on 15.1 1.2006. Based on the application filed by the first party and the police report aforementioned, an Order was passed, on 29.11.2007, by the District Magistrate, Kamrup (Metropolitan) District, Guwahati, drawing a proceeding under Sec. 133, Cr. P.C. and directing the second party to remove the barrier raised on the land, in question, which was claimed by the first party to be a public path or to show cause as to why the direction to remove the obstruction, so raised by the second party, be not made absolute. Though the second party appeared in the proceeding on the date fixed, i.e., 19.12.2006, without removing the barrier, they did not submit any written objection or written statement denying or disputing existence of public right over the land, in question. The learned Additional District Magistrate, who came in seisin of the proceeding, directed the Circle Officer, Guwahati, to conduct a local enquiry under Sec. 149, Cr. P.C. In compliance with the direction, so given, an enquiry report was submitted by the Circle Officer, Guwahati, on 10.5.2007 and, thereafter, an Order was passed directing the second party to adduce evidence. Though the second party did not adduce any evidence, yet an Order was passed, on 11.6.2007, by the learned District Magistrate, Kamrup (Metropolitan) District, Guwalati, vacating the earlier directions for removal of the barrier and the proceeding was accordingly dropped. It is this Order, dated 11.6.2007, which stands impugned in the present revision.

(3.) In Order to appreciate the questions involved in the present revisions, it is pertinent to allude to, and briefly point out, the various conditions and circumstances under which proceedings under Sec. 133 of the Code of Criminal Procedure (in short, 'the Code') can be initiated. A bare reading of Sec. 133 will show that it lays down six different conditions and circumstances enabling a District or a Sub-Divisional or an Executive Magistrate to draw proceedings thereunder. Sec. 133 (1) (a) refers to removal of unlawful obstruction or nuisance from any public place or from any way, river or channel, which is or may be lawfully used by the public, Sec. 133 (1) (b) empowers the Magistrates afore-mentioned to prohibit or regulate the conduct of any trade or occupation, which is injurious to the health or physical comfort of the community or to remove any goods or merchandise, which is injurious to health and physical comfort of the community or to regulate the keeping of such goods or merchandise. Sec. 133 (1) (c) relates to stopping of construction of, or preventing from construction of, any building or disposal of any substance, which is likely to occasion conflagration or explosion. Sec. 133 (1) (d) deals with any building, tent or structure or any tree, which is likely to fall and thereby cause injury to persons passing by or living or carrying on business in the neighbourhood. Sec. 133 (1) (e) refers to any tank, well or excavation adjacent to any public way or public place, which needs to be fenced to avert danger arising to the public and Sec. 133 (1) (f) vests the officials aforementioned with powers to direct any dangerous animal to be destroyed, confined or otherwise disposed of.