GHISA Vs. MADAA LAL

JUDGEMENT

(1.) THIS application under Section 482 Cr. P. C. is directed against the order passed in revision by the learned Sessions Judge, Sikar dismissing the revision of the petitioner filed in his Court against the order of the learned Sub-Divisional Magistrate, Sikar making conditional order issued under Section 133 Cr P. C. on 12-9-77 as absolute under Section 138 Cr. P. C. It arjses in the following circumstances:

(2.) AN application was addressed by Madan Lal Sethi (to be referred as party No. 1) to the Hon'ble Chief Minister, Government of Rajasthan mentioning therein that Ghisalal (hereinafter referred to as 'party No 2 has constructed a wall in front of the gate of his house, as a result of which he cannot enter into his house, This application was forwarded to S. H. O. Khatu, District Sikar. who submitted a report to the learned Sub-Divisional Magistrate on September 4. 1977 for taking action under Section 133 (1) Cr. P. C. The learned Sub-Divisional Magistrate on receiving the police report aforesaid and considering that there is unlawful obstruction which should be removed from a way which is or may be lawfully used by the public, made a conditional order on September 11, 1977 under Section 133 (1) Cr. P. C. requiring party No. 2, who is said to have caused obstruction on nuisance to remove such obstruction within 7 days or if he objects so to do, to appear before him and show cause why the order should not be made absolute. Party No. 2 put in appearance on 21-9-1977 and denied existence of any public right in respect of the way, in writing. The learned Sub-Divisional Magistrate first recorded statement of Madanlal (Party No. 1) and thereafter, at the request of the advocate for the parties ordered on 14-6-78 that first evidence of Party No. 2 should be recorded. After giving opportunity to Party No. 2, to lead evidence and Party No. 2 having failed to avail of that opportunity the learned Sub-Divisional Magistrate closed the evidence of Party No. 2 on August 17, 1978. Thereafter under Section 138 Cr. P. C. the conditional order made under Section 133 (1) Cr. P. C. on September 12, 1977 was made absolute. A revision was filed by Party No. 2 before the learned Sessions Judge who dismissed the same.

(3.) IT was submitted by the learned Advocate for non-petitioner No. 1 that the conduct of the party No. 2 is such that this Court should not interfere in the exercise of in its inherent powers. According to him, the alleged obstruction or nuisance of public way had been removed on November 16, 1978 and on November 20, 1978, orders for maintaining status quo were obtained from this Court and in the garb of those orders, wall which had been demolished was re-constructed on November 19,1978. Petition in this Court has been filed on October 16. 1978 though notices were only issued to the non-petitioners on November 20, 1978. IT is a question of fact as to whether the Advocate conducting the case was in know of the demolition of, if any of the wall on November 16. 1978 in pursuance of the order of the learned Sub-Divisional Magistrate and concealed the same fact or not ? Under the circumstances, it cannot be said that the conduct of party No. 2 is such which disentitles him for an order Under Section 482 Cr, P. C, if a Party is entitled for the same in the facts and circumstances of the case.