Research › Search › Judgment

Jharkhand High Court · body

2011 DIGILAW 399 (JHR)

Binod Tiwary v. State of Jharkhand

2011-05-04

D.K.SINHA

body2011
JUDGMENT D.K. Sinha, J.-This Criminal Revision is directed against the order impugned dated 3rd March, 2003 passed by the 1st Additional Sessions Judge, Jamshedpur in Cr. Rev. No. 28 of 2000 by which the order passed by Sri C.K. Mandai, Executive Magistrate, Dhalbhum, Jamshedpur on 28.1 .2002 in Misc. Case No. 500 of 1992 was set aside wherein final order was passed in a proceeding under Section 133 of the Code of Criminal Procedure. 2. A proceeding under Section 133 Code of Criminal Procedure was initiated on the application of the petitioner herein before the Sub-Divisional Magistrate, Dhalbhum which was eventually transferred to the Court of Sri C.K. Mandai, Executive Magistrate, Jamshedpur and it was numbered as Misc. Case No. 500 of 1992 against the opposite party Nos. 2 and 3 herein. It was stated in the application that an alley measuring 3 feet wide and 114 feet long was situated between the houses of both the parties i.e. east of the house of the petitioner and west to the house of the O.P. Nos. 2 and 3. The house of the O.P. Nos. 2 and 3 was situated on the eastern side in Mouza Ghorabandha under Khata No. 121 of plot Nos. 46, 1, 49 and 61, bounded by NorthRoad, South-alley, East-house of Vinay Kumar Tiwary and West-house of Brahmadeo Singh. The alley in question was used by the general public of the locality since prior to 1974 without any hindrance from any corner. It was stated that the O.P. Nos. 2 and 3 by erecting a wall on the northern and "southern side of the alley tried to grab the alley which was a vacant space for which a proceeding under Section 144 Cr.P.C. was initiated earlier between the' petitioner and O.P. Nos. 2 and 3 being he contesting parties. A separate proceeding under Section 107 of Cr.P.C. vide Misc. Case No. 1132 of 1990 was also initiated against, them which was dropped by the lapse of time. The petitioner alleged that in the month of March 1992 the Opposite Party Nos. 2 and 3 by taking law in their hands started erecting Kachcha wall with the use of bricks and mud causing inconvenience to the inhabitants of the locality and it also created apprehension of breach of peace. The petitioner alleged that in the month of March 1992 the Opposite Party Nos. 2 and 3 by taking law in their hands started erecting Kachcha wall with the use of bricks and mud causing inconvenience to the inhabitants of the locality and it also created apprehension of breach of peace. There was a peepal tree on the aforesaid alley with its branches leaning on the earth and spread over the house of the petitioner and the possibility of falling its branches on the by passers could not be ruled out. A joint petition was given to the TELCO Police Station, Jamshedpur by the petitioner and the people of the locality for removal of the nuisance but when no action could be taken against the opposite parties the petitioner filed a petition for initiation of the proceeding under Section 133 of Cr.P.C., accordingly, the learned Executive Magistrate called for reports as to the status of the alley on the petition of the petitioner from two agencies viz. (i) Assistant Director, Social Security, and (ii) concerned police station. The learned Executive Magistrate having considered the materials on the record and examining the evidence adduced on behalf of the parties and the reports submitted by different agencies, by order dated 28.1.2002 directed the O.P. Nos. 2 and 3 to remove the obstruction within 15 days and also the' pee pal tree within such period. 3. The Opposite Party Nos. 2 and 3 preferred Cr. Rev. No. 28 of 2000 before the Sessions Judge, Singhbhum East, Jamshedpur which was transferred to the file of 15th Additional Sessions Judge. After hearing the parties the 1st Addl. Sessions Judge by the order dated 3rd March, 2003 set aside the order recorded by the Executive Magistrate observing in sufficient evidence so as to establish that there was existence of alley wherein opposite parties were constructing Kachcha wall and there was a' peepal tree also therein. 4. Mr. Mahesh• Tiwary, the learned counsel appearing for the petitioner submitted that the learned Executive Magistrate in a proceeding under Section 133 of Cr.P.C. not only examined the report of Shri S.N. Majhi the then Assistant Director, social security as well as the report submitted by the concerned police station but also examined the evidence adduced on behalf of the parties. The learned Executive Magistrate recorded that two witnesses were examined on behalf of the O.P. Nos. The learned Executive Magistrate recorded that two witnesses were examined on behalf of the O.P. Nos. 2 and 3 and had considered the order passed in a proceeding under Section 145 of Cr.P.C. which was brought on the record. It was mentioned in the report of the independent agency viz. the Assistant Director, Social Security that 3 feet alley was left out by members of both the parties long ago by way of verdict given in a Panchayati and that the alley' was being used by the general public. The report further spelt out that wall made of bricks and mud was erected by the members of the second party and a peepal tree was also grown in the alley and that the length of alley was 3 feet x 114 feet. The opposite parties in the causes shown in the proceeding stated that the alley was encroached by the petitioner himself. The existence of alley between the houses of the parties found place in the report of the police wherein it was stated that a Panchayati was also held with respect to the alley and therefore, by order dated 28.1.2000 the O.P. Nos. 2 and 3 were directed to remove the encroachment and the peepal tree from the alley. Assailing the impugned order recorded by the 1st Additional Sessions Judge in Cr. Rev. N6. 28 of 2000, the learned counsel Mr. Mabesh Tiwary submitted that the Revisional Court set aside the order recorded by the Executive Magistrate on erroneous consideration that there was no reliable evidence on the record in support of his finding. It was further observed that the first party (petitioner) failed to give satisfactory evidence about existence of an alley on the land and the• obstruction made by the members of the second party. It was held that no Kachcha wall was constructed by the members of the second party and thereby obstructed the way whereas the independent agencies had given consistent reports about the existence of an alley as also existence of Kachcha wall being constructed by the O.P. Nos. 2 and 3 and therefore, the learnee st Additional Sessions Judge without application of judicial mind as also without considering the evidence in favour of the petitioner set aside the order impugned recorded by the Executive Magistrate, Jamshedpur in a proceeding under Section 133 Cr.P.C. which needs interference. 5. This Cr. 2 and 3 and therefore, the learnee st Additional Sessions Judge without application of judicial mind as also without considering the evidence in favour of the petitioner set aside the order impugned recorded by the Executive Magistrate, Jamshedpur in a proceeding under Section 133 Cr.P.C. which needs interference. 5. This Cr. Revision was filed on 26.6.2003 and by order dated 7.8.2003 the petitioner was directed to take steps for service of notice upon the O.P. Nos. 2 and 3. By order dated 12.5.2009 the Opposite Party Nos. 2 and 3 were directed to file counter affidavit after putting in appearance in the instant Cr. Rev. but they did not prefer to put forth their case. In the meantime, L.C.R. was called' for with respect to Cr. Rev. No. 28 of 2000 (Misc. Case No. 500/92). 6. Heard Mr. Md. Hatim, the learned O.P.P. for the State as well as J.C. to Ananda Sen appearing on behalf of the O.P. Nos. 2 and 3. The learned counsel appearing on behalf of the O.P Nos. 2 and 3 simply supported the order passed in Cr. Rev No. 28 of 2000 by the 1st Addl. Sessions Judge, Jamshedpur but failed to give satisfactory answer with regard to the reports submitted by the independent agencies about the existence of Kachha brick-mud wall and a peepal tree in the alley. I find that no interim order was granted and the learned counsel appearing on behalf of the parties failed to pin point the status of the disputed alley which was used by the petitioner and the local villagers, pursuant to an arrangement made in the village Panchayati. I find that it was not a dispute between the parties only but it was reported by the agencies, referred to herein before that the villagers were also exercising their right of easement through such alley and under such circumstances the members of the O.P. Nos. 2 and 3 cannot be permitted to create nuisance by obstructing the alley by erecting wall. 7. In the facts and circumstances, the order impugned passed by the 1st Additional Sessions Judge, Jamshedpur in Criminal Revision No. 28 of 2000 on 3.3.2003 is set aside. The order passed by the Executive Magistrate, Jamshedpur in Misc. Case No. 500 of 1992 on 28.1.2002 in a proceeding under Section 133 Cr.P.C. is modified to the extent that the O.P. Nos. The order passed by the Executive Magistrate, Jamshedpur in Misc. Case No. 500 of 1992 on 28.1.2002 in a proceeding under Section 133 Cr.P.C. is modified to the extent that the O.P. Nos. 2 and 3 would remove the Kachcha brick-mud wall from the said alley within four weeks of this order, if not already removed, under supervision of the local police by presenting an attested copy of the order before them. As regards removal of Pee pal tree from the• alley is concerned, the reports did not disclose that its branches could cause injuries to the by passers, as such no order need be passed for removal of the Pee pal tree from the alley. With the observation aforesaid, this Criminal Revision is allowed.