Research › Search › Judgment

Uttarakhand High Court · body

2004 DIGILAW 372 (UTT)

Harish Chandra Pande v. Nand Kishore

2004-12-16

J.C.S.RAWAT

body2004
JUDGMENT This criminal revision has been filed against the judgment and order dated 22-2-1990 passed by the District Judge, Almora in criminal revision No. 21/1999, whereby the District Judge remanded the case in the learned Magistrate with the direction that he will register the case afresh and then record a finding as envisaged by sub-section (2) of section 137 Cr.P.C. 2. Brief facts of the case are that Nand Kishore- respondent no. 1 made an application before the S.D.M., Baramandal to the effect that Harish Chandra Pande- revisionist had caused nuisance by causing obstruction to a public way and this has led to an apprehension to breach of peace in between the parties. The report was called for and the Magistrate issued a conditional order directing Harish Chandra Pande to remove the obstruction from the public path or to show cause as to why the conditional order should not be made absolute. Thereafter, S.D.M. Baramandal, Almora rejected the application of Nand Kishore on the ground of seeking adjournment and the S.D.M. Baramandal proceeded the case ex-parte against Nand Kishore vide order dated 11-41989. Feeling aggrieved by the said order, Nand Kishore preferred a revision before the learned Sessions Judge and the learned Sessions Judge has allowed the revision and the order dated 11-4-1989 was quashed. The learned Sessions Judge also directed the Magistrate to produced with the case at the stage from where it was proceeded ex-parte. It was further directed that the learned Magistrate would consider the matter concerning the report of the Tehsildar and the police authorities of P.S. Almora while deciding the matter under section 137 & 138 Cr.P.C. 3. Pursuant to the aforesaid order the learned Magistrate proceeded with the case and rejected the application of Nand Kishore vide order dated 23-10-1989. Feeling aggrieved by the said order, Nand Kishore again preferred a revision before the learned Sessions Judge and the learned Sessions Judge had allowed the revision. The learned Sessions Judge remanded the case to the Magistrate with the direction to register the case afresh and then record a finding as envisaged under sub-section (2) of Section 137. 4. Feeling aggrieved by the aforesaid order, the revisionist- Harish Chandra Pande has come up before this Court. 5. I have heard Sri J.C. Joshi learned counsel for the revisionist and Sri Amit Bhatt learned A.G.A. for the State and perused the record. 6. 4. Feeling aggrieved by the aforesaid order, the revisionist- Harish Chandra Pande has come up before this Court. 5. I have heard Sri J.C. Joshi learned counsel for the revisionist and Sri Amit Bhatt learned A.G.A. for the State and perused the record. 6. It is relevant to mention that sub-section (2) of Section 137 provides that if on such inquiry, the Magistrate finds that reliable evidence is adduced in support of denial of existence of public right of way on the disputed spot, he shall stay the proceedings until the matter of existence of such right is decided by a competent court, but if he finds that there is no such reliable evidence, he shall proceed as laid down in Section 138. The learned Sessions Judge had held that the Magistrate has not recorded anywhere that evidence is adduced by Harish Chandra Pande in support of denial of the existence of any public path. 7. The learned counsel for the revisionist contended that the revisionist has adduced the evidence before the trial court that there was no public path and the learned Magistrate also recorded a finding in the judgment that the evidence of the revisionist was reliable in support of the denial of existence of public path at the disputed place. Harish Chandra Pande adduced the evidence before the trial court and the learned Magistrate has held that there is no public way as such the proceedings were dropped. On perusal of the Patwari/ Tehsildar's report dated 18-04-1989 reveals that no public way has been obstructed by the revisionist- Harish Chandra Pande. Meaning thereby, there is a clear cut finding on this point. 8. In view of the above, the order dated 22-2-1990 passed by the District Judge, Almora in criminal revision No. 21/1989 is bad in the eyes of the law. Therefore, the order dated 22-2-1990 is liable to be set-aside. 9. Therefore, the revision is allowed. Order dated 22-2-1990 passed by the Sessions Judge Almora in criminal revision No. 21/1989 is set-aside and order dated 23-10-1989 passed by S.D.M., Almora is hereby restored.