Umesh Chandra Srivastava, J. - (1.) This application has been filed under section 482 of the Criminal Procedure Code seeking quashing of order dated 15.01.2002 passed by Sessions Judge Kushi Nagar at Padrauna in a Criminal Revision arising out of order dated 23.10.2000 passed by Sub-Divisional Magistrate, Tehsil Hata, District Kushinagar in a proceeding under section 133, Cr.P.C.
(2.) Facts giving rise to this application in brief are that respondent no. 4 made an application to Sub-Divisional Magistrate, Hata, Kushinagar alleging therein that applicants have obstructed the public passage in village Pipra, Pargana Ahirauli, Tehsil-Hata, District Kushinagar at Padrauna by constructing a wall and laying khunta in the passage. Acting upon the said application the S.D.M. Hata called for a report from the Station Officer Ahirauli Bazar. The Station Officer submitted his report dated 28.02.1995 confirming the allegations where upon the S.D.M. Passed a conditional order dated 03.03.1995 under section 133, Cr.P.C. requiring applicants to remove the aforesaid obstruction within fifteen days, and if they object so to do, to appear before him on 20.05.2005 and show cause why the conditional order be not made absolute. Pursuant to notice, applicants appeared and denied the existence of any public right over the disputed passage. They stated the disputed passage to be part of their Sehan.
(3.) Both Parties i.e. Opposite no. 4 and applicants filed affidavits in support of their claim. The S.D.M. Also called for a report from Revenue Inspector regarding spot position of the passage in question after making spot inspection. The Revenue Inspector submitted report along with map dated 05.11.1998 stating therein that passage in question is a public passage and applicants have narrowed the said passage by putting animal troughs Khoonta and charan therein. The S.D.M. after perusing the report of the Revenue Inspector as well as the reports of the Station Officer Ahirauli Bazar and being satisfied that public passage has been narrowed by the applicants, and thereby applicants have created a public nusiance, and removal of obstruction is necessary in the public interest, made the conditional order dated 03.05.1995 absolute and directed the Station Officer for the removal of the obstruction so caused by his order dated 23.10.2000.;