BALWANT Vs. JAI SINGH

JUDGEMENT

(1.) PETITIONER Balwant has filed this petition under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') for quashing the order dated 8.6.1992 passed by the Sub-Divisional Magistrate, Narwana vide which the conditional order dated 5.3.1990 passed by his predecessor under Section 137(2) of the Code for removal of the encroachment made by the petitioner was made absolute under Section 138 of the Code, and the order dated 16.2.1995 passed by the Additional Sessions Judge, Jind, vide which the revision against the aforesaid order was dismissed.

(2.) THE brief facts of the case are that the respondents filed an application under Section 133 of the Code before the Sub-Divisional Magistrate, Narwana alleging therein that the petitioner had made an encroachment upon a public street by constructing a room. On the said application, a notice was issued to the petitioner and conditional order dated 5.3.1990 was passed under Section 133 of the Code for removing the alleged encroachment in the street. In response to that notice, the petitioner denied the existence of the street to the extent of the disputed site and claimed that he did not make any encroachment on the public street on which his house is existing for the last so many years. Thereafter, the Executive Magistrate held an enquiry in the matter by treating it as a summon case under the provisions of Section 138 of the Code and came to the conclusion, on the basis of the evidence led by the parties, that the petitioner had made encroachment on the public street and thus made the conditional order dated 5.3.1990 absolute.

(3.) THEREAFTER , the petitioner filed Criminal Misc. No. 1184-M of 1990 in this Court under Section 482 Cr.P.C. which was allowed on 26.3.1991 and it was held by this Court that the trial Court as well as the revisional Court did not comply with the provisions of Section 137 of the Code as the question of existence or non-existence of the passage was not inquired into in spite of the fact that the petitioner, in reply to the notice of conditional order, had specifically denied the existence of the public passage. In such situation, it was mandatory for the Executive Magistrate to inquire into such matter before proceeding under Section 138 of the Code. If on inquiry the Magistrate finds that there is reliable evidence in support of such denial, then he would stay the proceeding until the matter of existence of such right has been decided by a competent Court. Thus, after setting aside the orders passed by the Courts below, the matter was remanded to the Executive Magistrate to decide the case afresh by following the procedure laid down under Section 137 of the Code.