OTMAL Vs. JHUNJHA RAM

JUDGEMENT

(1.) THIS is a reference submitted by Shri. S.R. Bhansali Sessions Judge, Balotra recommending that the order of the Sub Divisional Magistrate, Balotra dated 23.5.1970 passed in criminal case No. 206/1967 be quashed.

(2.) THE brief facts of the case are that one Jhunjha Ram filed an application before the Sub Divisional Magistrate, Balotra under Section 138 CrPC 1898 alleging therein that Otmal with the help of his labourers non petitioners No. 2 to 9 was digging foundation on the northern side of the public way by encroaching land of the public way and had collected sand and stones obstructing the way, which may be removed. The learned Sub Divisional Magistrate passed a conditional order on 1.6.1967 to the effect that the not petitioners No. 2 to 9 and Otmal were directed to remove the obstruction from the public way which they had caused by digging foundation and collecting sand and stones. Otmal filed his reply denying to have caused any obstruction and pleaded that he has constructed a house with a verandah in patta sud land. The learned Magistrate ultimately passed the impugned order dated 23.5.1970 to remove the encroachment including the verandah. Against that order Otmal preferred a revision before the learned Sessions judge, the revision was ultimately heard and vide order dated 29 -3 -1976. The learned Sessions Judge was of the view that the SDM has modified his conditional order dated 1 6.70 in passing the impugned order dated 23 -5 -70, which in the opinion of the learned Sessions Judge was not according to law, in view of the decision of this Court in Ramu Ram v. Lumba Ram 1973 W.L.N. Part II page 33 in which it was observed that under Section 137 CrPC (1998) no modification in the conditional order was permissible As this revision was pending before the Sessions Judge at the time the new CrPC came into force, the revision was to be decided in accordance with the provisions of the old CrPC and as the Sessions Judge was required to make the reference under the old CrPC he has made this reference to this Court.

(3.) I have heard the arguments and perused the record of the case.