RAM DAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS revision petition is directed against the order dated April 12, 1990, passed by the Additional Sessions Judge, Jaisalmer, in Criminal Appeal No. 5 of 1989, by which the learned Additional Sessions Judge dismissed the appeal filed by the petitioner.

(2.) MOHAN Dan, Bheek Dan, Maal Dan and Lichu Dan, all residents of village Sangar (district Jaisalmer), on June 28,1989, filed the petition under Section 133 Cr.P.C. in the Court of the Sub -Divisional Magistrate, Jaisalmer. It was alleged in that application that in village Sangar, adjoining to the house of non -petitioner No. 1 Ramdan there is a public Kathadi and also, a public, way about 3.25 feet wideon the back side of this Kathadi and the villagers are using this public way without any interuiption. Non -applicant Ramdan, with the aid of other non -applications, is trying to raise an obstruction on this public way and, therefore, he be restrained from constructing the same and obstructing the public way. In support of this application, the applicant filed to affidavits of Maldan, Mohan Dan, Bheek Dan and Laxman Dan. After the receipt of this application under Section 133 Cr.P.C. the learned Executive Magistrate madea conditional order and issued notices to the non -applicants requiring them to stop making construction over the public way and to remove the nuisance created on the public way and to appear before him on July 11, 1989, to show cause why he conditional order may not be made absolute. After the service of the notices, non -applicant Ram Dan appeared on July 11, 1989 and prayed for time for filing the reply. So far as the other non -applicants are concerned, Shri Jodha Ram, Advocate, who appeared on behalf of non applicant Ramdan, also, gave an undertaking that he will filed power on their behalf, also. The case was fixed on July 18, 1989. On July 18, 1989, non -petitioner No. 1 Ram Dan filed reply to the application and, also, filed an application with the prayer that the site may be isspected. The application filed by Ram Dan for inspection of the site was allowed by the learned Magistrate and Tehsildar, jaisalmer, was directed to inspect the site and to submit the report. Thereafter the learned Magistrate himself inspection the site and gave opportunity to the parties to produced their evidence. The applicants, in support of their case, produced their evidence. The non -applicant did not produce any evidence in support of their case and, therefore, after perusal of the evidence, the learned Magistrate, by his order dated November 24, 1989 made the order dated June 28, 1989, absolute and directed the non -applicants to remove the obstruction made in the public way. Dissatisfied with this order dated November 24,1989, the petitioner preferred an appeal before the learned Additional Sessions Judge, Jaisalmer, who, by his order dated April 12, 1990, dismissed the appeal filed by the petitioner. It is against this order dated April 12, 1990, passed by the learned Additional Sessions Judge, Jaisalmer, that the present revision petition has been filed.

(3.) IT is contended by the learned Counsel for the petitioner that the procedure adopted by the learned Magistrate in the present case is wholly illegal as the learned Magistrate proceeded with the application without passing any conditional order and appointed the Tehsildar, Jaisalmer, for inspection of the site, and after receipt of the report of the Tehsildar, he issued notices to the non -applicants and thereafter he himself inspected the site and consulted the several persons and no opportunity was given to the non applications to produce the evidence and it is not a case of public nuisance and of infringement of public right and the matter involved the question of personal right which has been settled by the competent Court. Lastly, it was contended by the learned Counsel for the petitioner that the learned lower Court decided the matter on the affidavits and according to law, the matter could not be decided on the basis of the affidavits. The learned Public Prosecutor, on the other hand, has supported the order passed by the learned lower Courts and a preliminary objection has been raised by the learned Counsel for the non -petitioners and the learned Public Prosecutor that the present revision petition is not maintainable because the order passed by the learned Sub -Divisional Magistrate in the proceedings under Section 133 Cr.P.C. is not appealable and, therefore, no appeal was maintainable before the learned Additional Sessions Judge. As no appeal was maintainable, the present revision petition, arising out of that order is, also, not maintainable.