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1998 DIGILAW 450 (ORI)

DAMODAR JENA v. SANJAYA CHANDRA VERMA

1998-12-16

P.K.MOHANTY

body1998
JUDGMENT : P.K. Mohanty, J. - The first party members in a proceeding u/s 133 of Cr.P.C. are in the petitioners, challenging the revisiona! order passed by the learned Sessions Judge, Cuttack remanding the matter to the Sub-Divisional Magistrate, Cuttack for an enquiry u/s 137, Cr.P.C. 2. A proceeding u/s 133 of the Code of Criminal Procedure was initiated by the Sub-Divisional Magistrate at the instance of the first party-petitioner. The claim of the first party was that the disputed plot No. 1529 even though has been recorded in the name of the second party members in the Consolidation record of rights, it is a road corresponding to plot No. 1332. It is further alleged that during the consolidation operation, there was exchange of plots between the first party and the second party members and in pursuance of that exchange, it was agreed that the first party would use the disputed plot as road. Dispute having arisen FIR was lodged and also a proceeding u/s 147 Cr.P.C. was taken up. Subsequently, on the allegation that the second party obstructed the plot by putting a fence, which creates nuisance, he filed a petition to initiate a proceeding u/s 133, Cr.P.C, The second party filed its objection on receiving the notice, and inter alia pleaded that there was never any agreement that the first party will have a right to use the disputed plot as a road inasmuch as the plot in question is their private property and used by them as a private road. It was also pleaded that the first party has his own road adjoining to eastern side of his house in plot No. 1459 connecting to the public road in plot No. 1542. The learned Sub-Divisional Magistrate restrained the second party members. Being aggrieved, the second party members preferred Criminal Revision No. 685 of 1994 in this Court and by order dated 25.11.1994, the order was vacated and the learned Sub-Divisional Magistrate was directed to hear the matter afresh. Undisputedly, on 3.12.1994, the second party members instituted Title Suit No. 147 of 1994 in the Court of the Civil Judge (Junior Division), Second Court, Cuttack for declaration that the proceeding initiated u/s 133, Cr.P.C. is illegal and that the firs! party has no right of way over the disputed plot, but the learned Magistrate proceeded with the matter and decided against the second party members. party has no right of way over the disputed plot, but the learned Magistrate proceeded with the matter and decided against the second party members. The present impugned revision was filed by the second party members. 3. The learned Sessions Judge has found that no inquiry u/s 137, Cr.P.C. was taken up by the learned Magistrate on the application dated 6.12.1994 of the second party members to stay the proceeding because of the institution of the Title Suit. The revisional Court held that the Sub-Divisional Magistrate committed a grave illegality in disposing of the proceeding without taking up the enquiry u/s 137, Cr.P.C. and in setting aside the order. However, the matter was remanded to the learned Sub-Divisional Magistrate to hold an enquiry u/s 137, Cr.P.C. and to find out as to whether there is any reliable evidence in support of the denial of existence of public road on the disputed plot keeping in mind the legal position enunciated by the High Court in Palau Dehury v. Sarat Chandra Patra (1990) 3 OCR 592 and thereafter he may proceed u/s 138, Cr.P.C. and dispose of the case. 4. Sri N.C.Mohanty, learned counsel for the petitioner contends that the impugned order of the learned Sessions Judge is erroneous in law and cannot be sustained since the enquiry directed to be conducted u/s 137, Cr.P.C. is beyond the scope of the revision inasmuch as contrary to the direction of the High Court in the earlier criminal revision. Section 133 of the Code of Criminal Procedure contemplates that a Magistrate specially empowered in this behalf by the State Government, on receiving the report of a Police Officer or other information and on taking such evidence as he thinks fit if he considers that any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel which is or may be lawfully used by the public etc., may make a conditional order requiring the person causing such obstruction or nuisance or carrying on such trade or occupation etc. to remove such obstruction or nuisance or resisting from or carrying on such nuisance. 5. to remove such obstruction or nuisance or resisting from or carrying on such nuisance. 5. Undisputedly in Criminal Revision No. 685 of 1994 filed by the opp.parties arising out of the very same proceeding between the self- same parties, this Court having found that the provisions of Sec. 138, Cr.P.C. has not been complied with and as such, the parties are to appear before the Magistrate on the date fixed so that he can proceed further in the matter in accordance with law. The relevant portion of the penultimate paragraph of the order dated 25.11.1994 in Criminal Revision No. 685 of 1994 may be quoted hereunder : "Section 138 provides that if a person against whom an order u/s 133 of the Code is made, appears and shows cause against the order, learned Magistrate shall take evidence in the matter as a summons case. That does not appear to have been done. The order dated 9.11.1994 is, therefore, vacated. Parties are directed to appear before the concerned Court on 6th of December, 1994 so that he can proceed further in the matter in accordance with law. Learned Magistrate shall do well to dispose the matter early preferably by end of December, 1994." 6. The learned Sessions Judge, as it appears from the impugned revisional order has completely misconceived the direction and misconstrued the scope of the order of this Court remanding the matter. A claim direction was given to the learned Magistrate to proceed with the matter from the stage of Section 138, Cr.P.C. enquiry as would be evident from the order quoted in the preceding paragraph. It appears that the learned Sessions Judge without properly applying his mind and reading the order of this Court in its proper perspective, has set aside the order on the ground that the Magistrate has not made any enquiry in terms of Section 137, Cr.P.C. and directed a fresh enquiry from the stage of Section 137, Cr.P.C. The learned Sessions Judge appears to have over- reached the order of this Court in directing enquiry u/s 137, Cr.P.C. which he could not have. The learned Sessions Judge ought to have considered the matter in its entirety keeping in view the direction of this Court that the enquiry is to start from Section 138 Cr.P.C. stage. 7. The learned Sessions Judge ought to have considered the matter in its entirety keeping in view the direction of this Court that the enquiry is to start from Section 138 Cr.P.C. stage. 7. In any view of the matter, the learned Sessions Judge not only directed to hold an enquiry u/s 137, Cr.P.C. but also he further directed that in case the Magistrate finds that there is no such evidence he may proceed u/s 138, Cr.P.C. and dispose of the case. The order of the learned Sessions Judge, is contrary to the direction of this Court in the earlier Revfsion. 8. In that view of the matter, the impugned order cannot be sustained in law and has to be set aside and so I do. It is directed that the learned Sessions Judge, shall re-hear and dispose of the Revision afresh, in accordance with law keeping in view the direction of this Court in Criminal Revision No. 685 of 1994 dated 25.11.1994. The petition is disposed of with the aforesaid observations and directions.