BALWANT Vs. JAI SINGH AND ANR.

JUDGEMENT

(1.) THE sole controversy involved in this petition filed under Section 482 of the Code of Criminal Procedure, 1973 (for short the Code), is whether it was incumbent on the trial Court, under Section 137 of the Code, to first hold an inquiry regarding the existence of the right in dispute, i.e. public street, before embarking upon the inquiry on merits of the case under Section 132 of the Code.

(2.) THE brief resume of facts relevant for the disposal of this petition is that on the application of the present Respondents that Balwant Petitioner had made encroachment upon a public street by constructing a room, the Magistrate first passed conditional order for removal of nuisance under Section 133 of the Code, and issued notice of (Sic (to)) Balwant. In answer to that notice, Balwant denied the existence of street to the extent of the disputed site. The Executive Magistrate then held an inquiry by treating it as a summons case under the provisions of Section 138 of the Code. On the basis of the evidence led by the complainant and relying upon the report of the Junior Engineer, the trial Magistrate came to the conclusion that it was an encroachment on the public street and made the conditional order absolute. The present Petitioner then filed a revision petition before the Sessions Court, Jind, which was dismissed by the learned Additional Sessions Judge, - -vide order Annexure P -2.

(3.) THE perusal of paragraph 3 of the order of the trial Court (Annexure PI) reveals that the Respondent -Petitioner Balwant stated as under: