HAFIZUR RAHMAN @ TUNTUN Vs. STATE OF BIHAR

JUDGEMENT

(1.) The second party to a proceeding under Section 133, Cr PC, being Case No. 1004(M) of 2004 has prayed for quashing of the order dated 14.2.2007 passed therein by the learned Sub-Divisional Magistrate, Bettiah, whereby having found the existence of encroachment on the right of passage of the first party in course of spot verification, he directed the Anchal Adhikari, Nautan, to get the road standing on gair mazarua aam lands measured in accordance with the recent survey map by the Anchal Amin and to get the encroachment over the road removed.

(2.) The submission on behalf of the petitioner is that there being land dispute between him and respondent No. 6 she with the help of respondent No. 5 got this proceeding initiated on a false plea of her passage being obstructed and the police without spot verification or recording of evidence of villagers recommended for initiating proceeding under Section 133, OPC. It was also submitted that the petitioner and respondent No. 5 are pattidars and the land in question is Khattyani lands of their ancestor whereupon the husband of respondent No. 5 had encroached beyond his share of land. Criticizing the police report it was submitted that a jhopri was built over 100 years back in which the petitioner has been living for all his life time peacefully. In this view of the matter the initiation of the proceeding and impugned order was-bad in law.

(3.) Sub-Section (1) of Section 133, Cr PC provides for passing of a conditional order for removing a nuisance in the event a case falls within one or the other Clauses (a) to (f) thereof and while passing such a conditional order, an opportunity has to be given to the proceedee to file his show cause in the matter. Section 137, Cr PC provides that if the proceedee denies the existence of a public right then the Magistrate has to hold an enquiry before proceeding under Section 138, Cr PC.