INDRA BAHADUR CHOUDHARY Vs. SHIB KANT JHA

JUDGEMENT

(1.) This revision is directed against the order dated 21-1-91 passed in Misc Case No 626/90 by S D M Saraikela in a proceeding under Section 133 of the Cr PC

(2.) The fact in short for the purpose of this application is that on the petition of the O P here, namely Shiv Kant Jha who was 1st party in the proceeding in the Court below, the S D M had drawn up a proceeding under Section 133 of the Cr PC as there was allegation that the petitioner here between Block Nos 117 and 118 of Road No 9 which is a lane fixed a hand pipe and also obstructed the passage by giving a wall and so inconvenience is being caused to the people of that locality and there is obstruction and nuisance in the public place The S D M drawn up proceeding on 23-11-90 and passed a conditional order and also directed the petitioner to remove the nuisance and also to file show cause by 3-12-90 The petitioner as a second party in the Court below entered appearance and filed the show cause denying the alleged nuisance or existence of any public right After that final order was passed on 31-1-91 by the SDM and the petitioner was directed to remove the encroachment and the obstruction on the public place within a week Against that very order the petitioner preferred this revision

(3.) Learned Counsel for the petitioners at the very outset assailed the order dated 21-1-91 mainly on the ground that admittedly petitioner filed show cause denying the obstruction or existence of any public right. In that view of the matter, before passing the final order under Section 138 the S.D.M. should have followed the provision as laid down in Sections 137 and 138 of the Cr PC meaning thereby that the petitioner should have been given an opportunity to adduce evidence in respect of his denial about the existence of public right and without giving this opportunity the final order i e impugned order was passed