HEERALAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS application under sec. 482 of the Code of Criminal Procedure, 1973 (hereinafter called the Code), is directed against the order, dated, June 10, 1980, of the Sessions Judge, Jaipur District, Jaipur, thereby affirming, in revision, the order of injunction dated, November 6,1979, passed by the Sub-Divisional Magistrate, Sambhar, under section 142 (1) of the Code, directing the petitioners herein to remove the bushes erected by them from a way and refrain from causing any obstruction there pending inquiry in the matter under section 133 of the Code.

(2.) A few facts relevant for the disposal of this application may be stated here. On April 18,1979, Gopal, respondent 2 herein filed an application under section 133 of the Code, in the Court of the Sub-Divisional Magistrate, Sambhar, complaining that the petitioners herein and one Bhoora, had caused obstruction in the public way running through the land comprised in khasra numbers, 818 and 179,be!onging to them. On May 8, l979, the learned Magistrate made a conditional order requiring the petitioners and Bhoora to remove the obstruction complained of, or, if they objected to remove it, to appear before him and show cause why the conditional order be not made absolute. The petitioners herein appeared on June 11, 1979, and filed written objections denying the existence of any public right of way through their land. Bhoora however admitted the existence of such a right in respect of the way in question.

(3.) I have very carefully considered the impugned order made by the learned Sub-Divisional Magistrate Sambhar and find that it cannot be legitimately faulted as amounting to abuse of the process of the court or refuting in failure of justice. Power is vested in the learned magistrate under s. 142 (1) of the Code to pass such an order. He has given reasons why he felt impelled to exercise that power. This court may or may not agree with his reasons The mere fact that it may not agree is no ground for holding that the order amounts to abuse of the process of the court. After all, it is an order of a temporary nature. It will cease to operate, if as a result of inquiry which is pending, learned magistrate is not satisfied that the conditional order made by him on May 8,1979, be made absolute. Prima facie, there is no question of the impugned order occasioning any failure of justice. Learned magistrate has referred to certain documents on the record in support of his tentative opinion that for some time atleast before he passed the conditional order there was some sort of pathway through the petitioners' land. It is of course not possible to express any opinion at this stage if this was a private pathway or a public one. These are matters which will certainly be looked into and finally determined by the learned Sub Divisional Magistrate in the inquiry which is pending before him.