BINOD TIWARY Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) This Criminal Revision is directed against the order impugned dated 3rd March, 2003 passed by the 1st Additional Sessions Judge, Jamshedpur in Cr. Rev. No. 28 of 2000 by which the order passed by Sri. C.K. Mandal, Executive Magistrate, Dhalbhum, Jamshedpur on 28.1.2002 in Misc Case No. 500 of 1992 was set aside wherein final order was passed in a proceeding under Section 133 of the Code of Criminal Procedure.

(2.) A proceeding under Section 133 Code of Criminal Procedure was initiated on the application of the Petitioner herein before the Sub-Divisional Magistrate, Dhalbhum which was eventually transferred to the court of Sri. C.K. Mandal, Executive Magistrate, Jamshedpur and it was numbered as Misc Case No. 500 of 1992 against the opposite party Nos. 2 and 3 herein. It was stated in the application that an alley measuring 3 feet wide and 114 feet long was situated between the houses of both the parties i.e. east of the house of the Petitioner and west to the house of the O.P. Nos. 2 and 3. The house of the O.P. Nos. 2 and 3 was situated on the eastern side in Mouza Ghorabandha under Khata No. 121 of plot Nos. 46, 1, 49 and 61, bounded by North-Road, South-alley, East-house of Vinay Kumar Tiwary and west-house of Brahmadeo Singh. The alley in question was used by the general public of the locality since prior to 1974 without any hindrance from any comer. It was stated that the O.P. Nos. 2 and 3 by erecting a wall on the northern and southern side of the alley tried to grab the alley which was a vacant space for which a proceeding under Section 144 Code of Criminal Procedure was initiated earlier between the Petitioner and O.P. Nos. 2 and 3 being the contesting parties. A separate proceeding under Section 107 of Code of Criminal Procedure vide Misc. Case No. 1132 of 1990 was also initiated against them which was dropped by the lapse of time. The Petitioner alleged that in the month of March 1992 the opposite party Nos. 2 and 3 by taking law in their hands started erecting Kachcha wall with the use of bricks and mud causing inconvenience to the inhabitants of the locality and it also created apprehension of breach of peace. There was a peepal tree on the aforesaid alley with its branches leaning on the earth and spread over the house of the Petitioner and the possibility of falling its branches on the by passers could not be ruled out. A joint petition was given to the TELCO police station, Jamshedpur by the Petitioner and the people of the locality for removal of the nuisance but when no action could be taken against the opposite parties the Petitioner filed a petition for initiation of the proceeding under Section 133 of Code of Criminal Procedure, accordingly, the learned Executive Magistrate called for reports as to the status of the alley on the petition of the Petitioner from two agencies viz (i) Assistant Director, Social Security and (ii) concerned police station. The learned Executive Magistrate having considered the materials on the record and examining the evidence adduced on behalf of the parties and the reports submitted by different agencies by order dated 28.1.2002 directed the O.P. Nos. 2 and 3 to remove the obstruction within 15 days and also the peepal tree within such period.

(3.) The opposite party Nos. 2 and 3 preferred Cr. Rev. No. 28 of 2000 before the Sessions Judge, Singhbhum East, Jamshedpur which was transferred to the file of 1st Additional Sessions Judge. After hearing the parties the 1st Addl. Sessions Judge by the order dated 3rd March, 2003 set-aside the order recorded by the Executive Magistrate observing in sufficient evidence so as to establish that there was existence of alley wherein opposite parties were constructing Kachcha wall and there was a peepal tree also therein.