VISHNU KUMAR Vs. STATE

JUDGEMENT

(1.) Head learned counsel for the parties.

(2.) The facts giving rise to this petition under Sec. 482 Cr.PC against the order of the learned Additional Sessions Judge, Bharatpur dated 26.11.1991 passed in Criminal Revision No. 83 of 1991 are these

(3.) On Dec., 15/18, 1987 Shri Vishnu petitioner complained to the Sub Divisional Magistrate, Bharatpur that Shri Shyam Lal respondent No. 2 with the connivance of the Executive Officer of Municipal Board, Kumher (Respondent No. 3) had encroached upon the land of a public way in Ward No. 6 Kumher The learned Magistrate initiated proceedings under Sec. 133 Cr.PC and on 4.1.1988 passed the conditional order directing removal of the encroachment within 15 days failing which the rule was to be made absolute. Respondent No. 2 opposed the application the ground that he had not encroached upon any land of a public way and whatever construction he had made towards the road side, that was made after obtaining prior permission from Respondent No. 3. After conducting necessary enquiry into the case the learned Magistrate held that the land of a Public way was encroached upon. He accordingly ordered for removal thereof. Respondent No. 2 challenged the order of the learned Magistrate dated 26.12.1990 by preferring a revision application under Sec. 397 Cr.PC before the Court of Sessions Judge, Bharatpur. After hearing the parties and on examining the record of the proceedings before the court of the Magistrate, the learned Additional Sessions Judge, to whom the revision application stood transferred for disposal, held that since the construction towards the road side as made by the Respondent Shyam Lal after obtaining required permission from Respondent No. 3 it was not a fit case for exercise of powers under Sec. 133 Cr.PC by the learned Magistrate and the parties may well approach a Civil Court for ascertainment of their legal rights. He accordingly set-aside the order of the Magistrate and accepted the revision petition.