ZINSI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) ZINSI has filed this revision application challenging the order of the learned sub-Divisional Magistrate, Gangapur dated 13th June, in a proceeding under chapter X of the Code of Criminal Procedure which was upheld by the learned Additional Sessions Judge, Gangapur, by his order dated 27th August, 1966.

(2.) A complaint was lodged by Rampal and seven others in the court of the Sub-Divisional Magistrate, Gangapur, alleging that Zinsi and his eight associates have obstructed the public way by making a pucca construction and that the petitioners were left with no other way to take their cattle to their fields and well with the result that their standing crops are likely to be destroyed. It was also alleged that there was likelihood of breach of peace if the obstruction had not been removed by the court. The complaint was sent by the learned Magistrate for enquiry to the police and on receipt of a report from the Station House Officer, notices were issued under sec. 133 Criminal Procedure Code on 7th January, 1966, requiring Zinsi and eight others to remove the obstruction and to show cause why the provisional order may not be made absolute. Out of nine opposite parties, only Zinsi filed his objection to the provisional order issued by the court, and pleaded that before he made the construction pucca there was a kutcha construction for a long time and that there was no public way through the place where the construction has been raised by him. Three witnesses were produced by Zinsi in support of his case. The learned Magistrate went to inspect the site and, thereafter the Patwari of the village was examined by him. Both the parties were, however, afforded an opportunity to cross-examine the Patwari who was probably examined by the Magistrate as a court witness. After considering the material brought on the record, the learned Magistrate by his order dated 13th June, 1966, made his provisional order absolute and required Zinsi to remove the construction from the place which was found to be public way by the learned Magistrate. Zinsi filed a revision application against the said order of the learned Magistrate in the court of the Additional Sessions Judge, Gangapur, who, after hearing both the parties, upheld the impugned order of the trial court. It is in this manner that this second revision application has been filed by Zinsi to assail the orders of the two courts below.