GAYA DATT PATHA Vs. NARABDESHWAR DUBEY

JUDGEMENT

(1.) This application in revision arises out of proceedings under Section 133 of the Code of Criminal Procedure.

(2.) It appears that on 8-10-3966, the Subdivisional Magistrate, Sasaram, on perusal of a report submitted by the Sub-inspector of Police, Dawath Police Station, was of the view that there was an apprehension of breach of the peace between the parties, namely, Narabdeshwar Dubey on the one hand (who is the opposite party here) and Gaya Patbak and others, on the other, (the petitioners here), in respect of Khata No. 457, Plot No. 1921 of village Jogani. He ordered that proceedings be drawn up under Section 144 of the Code against both the parties and they were restrained from going to the land. It was further ordered to the parties to show cause by a certain date. It appears that after the matter was taken up on various dates, the proceeding was converted into Section 133 of the Code of Criminal Procedure on 5-12-1966. Later, on the same date he drew up a proceeding under Section 133 of the Code against the members of the opposite party, namely, the present petitioners and required them to show cause by 27-12-1966 as to why the encroachment should not be removed. It appears that after a number of dates on 23-11-1967 the petitioners filed their show cause and the case was transferred to a Magistrate, First Class, for disposal. After the case was taken up and adjourned on various dates, ultimately on 6-11-1968 the Magistrate having held local inspection in presence of both the parties and their lawyers, ordered the second party, namely, the petitioners to remove the encroachment and further directed them to widen the existing road over the plot in question,

(3.) It is urged by learned counsel, appearing on behalf of the petitioners, that they had not only filed the show cause before the learned Magistrate, but had also filed, various papers in assertion of their claim, namely, the denial of the existence of the public rights and any encroachment, as alleged, but the learned Magistrate did not proceed in accordance with the mandatory provisions as laid down in Section 139-A of the Code of Criminal Procedure. It has been pointed out that in the Impugned order the learned Magistrate had observed that no evidence had been adduced by either of the parties which means at the time the learned Magistrate had held the local inspection. It is contended that even if no evidence had been led by either of the parties the Magistrate was clearly in error in not proceeding in accordance with law, as laid down under Section 139-A of the Code.