- (1.) HEARD learned counsel for the petitioner, learned A.G.A. for the State and perused the material available on record.
(2.) UNDER challenge in the instant petition is the judgment and order dated 27.11.2010 passed by learned Additional Sessions Judge, Court No. 8, Barabanki passed in Criminal Revision No. 229 of 2010 (Tirth Pratap Mishra Vs. State of U.P. and Others) as well as judgment and order dated 24.9.2010 passed by Sub Divisional Magistrate Fatehpur, Barabanki in Case No. 31/18/16/12/10 (Tirth Pratap Mishra Vs. Girish Chandra Pathak and Another) under Section 133 Cr.P.C., Police Station Kotwali Fatehpur, District Barabanki.
(3.) PERUSAL of the record shows that on the application of the present petitioner, proceedings under Section 133 Cr.P.C. were initiated. It was alleged in the application that opposite party Girish Chandra Pathak and Sandeep Pathak have constructed steps in front of their house after removing brick work (Khadanza) of the public road. Conditional order was issued on 8.9.2005. Opposite parties filed their objection on 12.1.2006 claiming therein that the said place was not a public way and the opposite parties have obtained permission from the Nagar Nigam for construction of steps and Balcony from the Nagar Panchayat. Thereafter the matter was heard and the place was got inspected by the Naib Tehsildar. S.D.M. also himself inspected the disputed place and by the impugned order he was of the view that there is no obstruction in the public road as it is not a public road but it is only the approach road for the opposite party to their house. Learned Magistrate recalled the conditional order on certain conditions. Operative portion of the order reads as under: - "XXX XXX XXX" Feeling aggrieved by the said order, the present petitioner preferred Criminal Revision No. 229 of 201 before the learned Sessions Judge, Barabanki and the learned Additional Sessions Judge, by the impugned order was also of the view that the dispute does not fall within the scope of Section 133 Cr.P.C. as it was not a public way and dismissed the revision. However, the last paragraph of the judgment just before the operative portion reads as under: "XXX XXX XXX".;