Judgment 1. Heard learned counsel for the parties. 2. In this application filed u/s 482 of the Code of Criminal Procedure (in short as Code) prayer has been made for quashing the order dated 11.4.2005 passed by the Sub Divisional Magistrate, Aurangabad in case no. 315/2004 whereby and whereunder he dropped the proceeding u/ s 133 of the Code. 3. It appears that petitioner was first party to the proceeding whereas Opposite Parties no.2 and 3 were second party to the proceeding before the court below. 4. It is said that case of the petitioner was that his residential house is situated on survey plot no. 72 in village Bhora Bigha tola of village Khardiha, Thana no. 880 facing north (in front of the house of Opposite Parties no.2 and 3) adjoining north of which is Khata no. 23 plot no. 70 which is Gair Majurwa Am Pind (Aam Rasta) towards which there is Niksar of the petitioners house since more than 70 to 75 years. O.P. nos. 2 and 3 in order to block the passage and Niksar of the petitioner started raising construction over plot no. 70 which was Aam Rasta in public use. Petitioner thereafter raised objection with regard to the illegal construction over plot no. 70 upon which members of the Opposite parties became ready to assault him. The petitioner filed an application before the S.D.M., Aurangabad in this regard upon which report from Anchal Adhikari, Deo was called for. After considering the report of the Anchal Adhikari as contained in annexure-1 to the application S.D.M., Aurangabad vide order dated 5.4.04 issued show cause notice initiating proceeding u/s 144 of the Code. In spite of order dated 5.4.2004 the opposite parties no.2 and 3 did not stop the construction over plot no. 70 and 80 learned Magistrate converted the pending proceeding into one u/s 133 of the Code and accordingly, notice was issued. It further appears that O.P. nos. 2 and 3 appeared and denied the allegation. Learned Magistrate heard the matter and by the impugned order dated 11.4.2005 dropped the proceeding on the ground that no case u/s 133 of the Code was made out. Against the said order of the learned Magistrate the petitioner being the first party has preferred the present application for quashing before this court. 5. Learned Magistrate heard the matter and by the impugned order dated 11.4.2005 dropped the proceeding on the ground that no case u/s 133 of the Code was made out. Against the said order of the learned Magistrate the petitioner being the first party has preferred the present application for quashing before this court. 5. Now the position is that after initiation of the proceeding u/s 133 of the Code the opposite parties appeared and denied existence of any encroachment over the public land. It appears that after their denial the learned Magistrate did not ask them to adduce evidence in support of their denial. Learned Magistrate also did not record a finding whether any reliable evidence has been produced in support of denial. Even no opportunity was given to the first party to lead evidence in support of his stand. It appears from the impugned order that the learned Magistrate has committed some procedural illegality. 6. Such being the position, this application is allowed and order impugned is hereby quashed. 7. The matter is remanded back to the learned Magistrate for deciding in accordance with law preferably within a period of three months from the date of receipt of a copy of this order.