- (1.) POONAM Srivastav, J. Heard Sri Ram Niwas Singh and Sri V. K. S. Chandel, learned Counsels for the petitioner, Sri Sadanand Singh Advocate for the caveator and learned A. G. A. for the State.
(2.) THE instant writ petition arise out of proceeding under Section 133 Cr. P. C. THE petitioner moved an application before the police that the respondent No. 1 has closed the public path. THE Station House Officer, Police Station Mugalsarai, District Chandauli submitted a report on 25-2-2005 with a recommendation to initiate proceedings under Section 133 Cr. P. C. On the basis of the aforesaid report, a preliminary order was passed issuing show cause notice under Section 133 (1) Cr. P. C. to the respondent No. 1 directing him to remove the obstruction from the public path or show cause why the obstruction should not be removed forcibly fixing 15-4-2005. THE respondent No. 1 denied the existence of any path way by filing a reply. On the receipt of the said objection, the Sub-Divisional Magistrate, Chandauli called for a report from the Naib Tehsildar. An inquiry was conducted and the Naib Tehsildar submitted his report dated 13-12-2005 stating therein that the respondent No. 1 had caused obstruction by constructing 5 feet wall adjoining the land of the petitioner. THE respondent No. 1 filed his objection to the aforesaid report of the Naib Tehsildar. It also transpires that there was some dispute between the petitioner and Raghuveer and others including Pancham, father of the respondent No. 1, which led to institution of Original Suit No. 234 of 1977. THE suit was decreed by the trial Court and the defendants filed a Civil Appeal No. 402 of 1980-Raghuveer and Ors. v. Baleshwar and Ors. A settlement was arrived at during the pendency of the appeal and the said appeal was decided in the terms of compromise. THE Sub-Divisional Magistrate, Chandauli came to a conclusion that the dispute between the petitioner and respondent No. 1 appears to be a private dispute between two parties and, therefore, the proceeding under Section 133 Cr. P. C. is not maintainable. This order was challenged in Criminal Revision No. 78 of 2006, which stands dismissed vide order dated 17-2-2007. Both the orders are impugned in the instant writ petition. The submission on behalf of the petitioner is that the Courts below have failed to consider the material on record and the findings recorded by the two Courts are based on misreading of documents besides being perverse and against the material on record. It is submitted that in the original suit No. 234 of 1997, Baleshwar and Ors. v. Raghuveer and Ors. , a Commissioner's report dated 12-9-1997 was submitted which indicates that the disputed land is the subject matter of proceeding under Section 133 Cr. P. C. and has been shown to be a passage. Sri Ram Niwas Singh has also argued that the report of Naib Tehsildar affirms his contention that the obstruction created by the respondent No. 1 amounts as a nuisance created for the public at large. The compromise filed in Civil Appeal No. 402 of 1980 was also misread. The next contention of the Counsel for the petitioner is that if there was any evidence in support of the denial of public path, the proceeding under Section 133 Cr. P. C. should have been stayed in view of sub-section 2 of Section 137 Cr. P. C. The Sub-Divisional Magistrate has failed to follow the procedure under Section 138 (1) Cr. P. C. and the impugned judgment and the impugned orders are illegal, arbitrary and not sustainable in law. Reliance has been placed on a decision of this Court in the case of Brij Kishore Rai v. State of U. P. and Ors. , 2002 (2) JIC 762 (SC) : 2002 (45) ACC, 834.
(3.) COUNSEL for the caveator has supported the two judgments of the Courts below and has submitted that the subject matter of the instant dispute was the same in the original suit No. 234 of 1977. This itself affirms that there is a dispute between two parties inter-se and the Courts below were correct in their approach while holding that it is a dispute between two private parties and finally dropped the proceedings under Section 133 Cr. P. C. Learned A. G. A. has supported the contention of the learned Counsel for the caveator.;