DURGI DEVI Vs. STATE OF H.P.

JUDGEMENT

(1.) The present petition, under Section 482 of the Code of Criminal Procedure, read with Article 227 of the Constitution of India, has been maintained by the petitioner against the order dated 05.09.2017, passed by learned Sessions Judge, Hamirpur, H.P., in Cr. Revision No. 16 of 2014, whereby order dated 26.06.2014, passed by learned Sub-Divisional Magistrate, Bhoranj, District Hamirpur, H.P., in case No. 14/11, has been set aside and complaint under Section 133(1)(d) of the Code of Criminal Procedure (hereinafter to be called as "the Code") filed by respondent No. 2/complainant (hereinafter to be called as "the complainant") has been allowed.

(2.) Briefly stating the facts, giving rise to the present petition are that on 16.03.2010, complainant filed a complaint against the present petitioner under Section 133(1) (d) of the Code, wherein it has been alleged that there is one mango tree of the petitioner and house of the complainant is located under the branches of the said tree and the tree may be fall at any time and may cause damage to the house of the complainant. So, the complainant prayed for removal of the nuisance. Consequently, the matter was sent to S.H.O., Police Station Bhoranj and report was called. On the report, learned trial Magistrate has taken cognizance and issued notice under Section 133 of the Code to the petitioner. In reply to the said notice, the petitioner totally denied the fact of apprehension of public nuisance and it has been averred that the tree will not cause any damage to the house of the complainant, as the house is 20 feet away from the house of the complainant. It has been further averred that the complainant constructed the house below the branches of the tree and now he wants to construct second storey. Lastly, dismissal of the notice was prayed.

(3.) The learned trial Magistrate after recording the statements of the witnesses, dropped the proceedings against the petitioner on the ground that it is a private dispute between the parties and provisions of Section 133 of the Code are not attracted at all. Feeling aggrieved, the complainant filed a revision petition against the said order and learned Sessions Judge, Hamirpur, set aside the order passed by learned trial Magistrate and directed the petitioner to cut the branches of mango tree, which are extending towards the house of the complainant within 30 days. Hence the present petition.