HARSH KUMAR,J. - (1.) Heard Sri A.P. Singh, learned counsel for the revisionists, Sri Manas Bhargava, learned counsel for opposite party Nos. 2 to 5, learned AGA for the State and perused the record.
(2.) The present criminal revision has been filed against the order dated 25.11.2011 passed by Additional Sessions Judge, Court No. 1, Siddharth Nagar allowing the Criminal Revision No. 79 of 2009 of opposite party Nos. 2 to 5, by setting aside the order dated 28.5.2008 passed by S.D.M/Up-Zila Magistrate, Etwa, District Siddharth Nagar in Case No. 01 of 2001, under section 147 Cr.P.C., 1973 and remitting the case back to S.D.M. for afresh disposal.
(3.) Learned counsel for the revisionists contended that the impugned order remanding the matter to Magistrate for afresh disposal after affording reasonable opportunity of hearing to the parties in view of the observations made in the order and in accordance with law, is wrong on facts and law; that the dispute is in respect of a rasta, which is being used by the revisionists from the times of their ancestors and since it is the only rasta available for ingress and egress from and to their residential house and is private rasta, the revisionists exercise easementary right of necessity over it and it comes within the definition of land under section 145 Cr.P.C., 1973 and so the provisions of section 147 Cr.P.C., 1973 are applicable to the case; that only in case of public rasta, the provisions of section 133 Cr.P.C., 1973 will be applicable; that opposite party Nos. 2 to 5 had filed Criminal Revision No. 120 of 2006 against the earlier order dated 31.3.2006 of the S.D.M. on the ground of maintainability of proceedings under section 147 Cr.P.C., 1973 which was dismissed vide order dated 17.5.2006 at Annexure No. 3; that the same issue was again raised in the revision against final order of the Magistrate dated 28.5.2008 in which the learned Sessions Judge has acted wrongly and illegally in remanding the case in view of the law laid down by the Apex Court in the case of AIR 2000 SC 1504 Amresh Tiwari v. Lalta Prasad Dubey and another as well as AIR 1985 SC 472 Ram Sumer Puri Mahant v. State of U.P. and others ; that the civil suit is pending between the parties, as Civil Suit No. 71 of 2003, which has been filed by revisionists subsequently and since the proceedings under section 147 Cr.P.C., 1973 were initiated before the institution of Civil Suit, the Magistrate had full jurisdiction to proceed with the case; that the revision is liable to be allowed and impugned order is liable to be set aside.;