JUDGMENT AND ORDER : 1. Heard Mr. A. Bhowmik, learned counsel appearing for the petitioners as well as Mr. R.C. Debnath, learned Addl. P.P. appearing for the respondent No. 1. Despite due notice, the remaining respondents are unrepresented when the matter is taken up for hearing. 2. From the records it appears that one Dayal Das and 6(six) other persons who were the residents of Betaga under Baikhora P.S. filed a resentful petition before the Sub-Divisional Magistrate, Santirbazar Sub-division, out of apprehension that the katcha(mud) road which connects their respective places of residence and the National High Way-44 was being grabbed by the petitioners herein. According to those petitioners, who are referred as the first party in the proceeding under Section 145 of the Cr.P.C. the said road does exist on plots No. 426, 427, 429, 425, 432 and 435 of Mouja Baikhora. 3. From the petition filed by those 7(seven) persons it transpires that the petitioners herein, referred as the second party in the said proceeding under Section 145, had asserted that they would stop use of that road as that road exists on their jote land. Prior to the proceeding under Section 145 of the Cr.P.C. was drawn up, the Lok Adalat, Belonia, South Tripura under Case No. 116 of 2013 made endeavour to strike out a settlement on the basis of consensus. For that purpose, the Lok Adalat had appointed a Survey Commissioner for demarcation on the boundaries of the road and accordingly the Survey Commissioner submitted his report. The said Survey Commissioner's report has been relied by the Sub-Divisional Magistrate. In the proceeding under Section 145 of the Cr.P.C. at the instance of the Deputy Collector and Magistrate, one Revenue Inspector surveyed the land and it transpired to the Sub-Divisional Magistrate that the said road runs outside the boundary line of plot No. 425 and hence the respondents, the co-sharer of the plot No. 425 had no right to obstruct the free movement of the people and they are to abide by the order of the Lok Adalat. The Lok Adalat's order dated 09.12.2013 is very cryptic. By the order dated 09.12.2013, the Lok Adalat disposed the said proceeding purportedly on settlement. But from the records, produced by the petitioners herein, no such settlement is available. The Lok Adalat's order dated 09.12.2013 is very cryptic. By the order dated 09.12.2013, the Lok Adalat disposed the said proceeding purportedly on settlement. But from the records, produced by the petitioners herein, no such settlement is available. However, Sub-Divisional Magistrate by the order dated 30.05.2014 has observed and directed as under: “In the Case of the plot No. 427, it may be stated that, some portion of this road also passes through this plot, but it passes through the boundary line and the owners of the plot are also using this road for their movement. It is in existence for so many years and they had never put any resistance inspite of the fact that, it passes through their land. Now they are also advised not to put any obstruction to the passerby. If they have any grievances they should approach the appropriate Court for redressal of their grievances without putting physical obstruction to the passers by. The 1st party members also instructed to use the road for their movement and they should not undertake any repairing work without consent of the 2nd party members. All of them are instructed to maintain the peace and public tranquility in the area at any cost.” This order has been challenged here by the petitioners, [the second party in the proceeding under Section 145 of the Cr.P.C.]. 4. Mr. A. Bhaumik, learned counsel appearing for the petitioners has raised two pronged objections. Firstly when the dispute relates to the easement any right or is based on the necessity of easement, the Sub-Divisional Magistrate does not have any jurisdiction to try this case, for that only the civil court does have the jurisdiction to exercise and secondly, the report which has been relied by the Sub-Divisional Magistrate ought not have been relied by him in view of the provisions of Section 148 of the Cr.P.C. which reads as under: “(1) Whenever a local inquiry is necessary for the purposes of section 145, section 146 or section 147, a District Magistrate or Sub-Divisional Magistrate may dispute any Magistrate subordinate to him to make the inquiry, and may furnish him with such written instructions as may seem necessary for his guidance, and may declare by whom the whole or any part of the necessary expenses of the inquiry shall be paid. (2) The report of the person so deputed may be read as evidence in the case.” 5. According to him, the said order is absolutely unsustainable as the Sub-Divisional Magistrate while passing the impugned order has exceeded his jurisdiction. 6. From the other side, Mr. R.C. Debnath, learned Addl. P.P. appearing for the respondent No. 1 on producing the records of the proceeding has submitted that the Sub-Divisional Magistrate himself visited the area to ascertain the existence of the road and on what plots the said road is existing. At his direction, the Deputy Collector and Magistrate took up the charge of the survey but the Deputy Magistrate himself did not survey the road to find out whether the road exists in the jote land and if exists on the jote land under which plots and their owners. According to Mr. Debnath, learned Addl. P.P. the said report is of the Deputy Collector and Magistrate and he has taken aid of the survey report furnished by one Revenue Inspector. On thorough scrutiny of the report, this court does not find that the Deputy Collector and Magistrate even has enclosed the said report. 7. Mr. R.C. Debnath, learned Addl. P.P. has further submitted that in the Lok Adalat, the matter was amicably settled. It was on such consensus held that the petitioners shall allow and not disturb movement of the respondents and other residents of that area to use the said road. As already stated, this court has failed to find out any such memorandum of settlement as claimed to have arrived before the Lok Adalat. However, this court is not indicating that there was no such settlement in view of the order dated 09.12.2013. But what the settlement was, if there was such any settlement at all, this court has not come across of any such settlement from the evidence. Even in the impugned order, there is no such reflection. On scrutiny of the records and having appreciated the submissions made by the learned counsel for the parties, this court finds that the Sub-Divisional Magistrate did not pass any order as such. But he has advised the petitioners herein not to put any obstruction to the passersby and if they have any grievance they should approach the appropriate court for the redressal of their grievance without putting physical obstruction to the passersby. But he has advised the petitioners herein not to put any obstruction to the passersby and if they have any grievance they should approach the appropriate court for the redressal of their grievance without putting physical obstruction to the passersby. However, the respondents No. 28 were also similarly advised not to undertake any repairing work of the road without consent of the petitioners. 8. Now the solitary question that falls for consideration of this court is that whether, even if in the form of advisory, the Sub-Divisional Magistrate can direct the petitioners not to obstruct one work from using their jote land as the pathway. The petitioners have their own rights to use their jote land according to their own choice, unless of course it is established that within the meaning of easementary right the respondents No. 2 to 8 have any such right emanating from the necessity of easement. They should assert such right, if any, only when there would be the actual event of resistance. From the records, it does not appear that there was any such actual event of resistance from the side of the petitioners. However, out of apprehension, the petition was filed by the respondents No. 28 and the impugned order has been passed by the S.D.M. This court is constrained to observe that simply on the basis of apprehension of law and order situation, he could not have directed the petitioners not to obstruct the passersby over the jote land. It also surprising that the petitioner did not carry out any action for reversing the settlement as brought about by the Lok Adalat by their order dated 09.12.2013. It is appropriate to contend that the Sub-Divisional Magistrate ought not have utilised the surveyor's report since it was not carried out by any Magistrate, subordinate to him, inasmuch as sub-section 2 of Section 148 of the Cr.P.C. provides that the report of the other person may not be read as the evidence in such cases. The report of the persons so deputed shall always mean the report of the Magistrate subordinate to the Sub-Divisional Magistrate. As such, the impugned order is set aside. The report of the persons so deputed shall always mean the report of the Magistrate subordinate to the Sub-Divisional Magistrate. As such, the impugned order is set aside. However, the petitioners shall not create any obstruction to movement of the residents of that area over the said road without observing the due process of law, even if that road passes through their jote land as it has been asserted that the road is in existence for more than 50(fifty) years. 9. This court does not find any finding as to the existence of the road for 50(fifty) years over, and hence unless the petitioners obtained an appropriate order from the civil court, they cannot stop the movement else that would amount to defiance of the procedure as established by law. Any observation made hereunder, however, shall not influence any future proceeding either in the court of the Executive Magistrate or in the civil court of the competence jurisdiction. It is further made clear that the petitioner cannot stop the movement of the residents through the said road, existence of which is evident from the records, without following the procedure of law. 10. With this observations and direction, this petition stands allowed to the extent as indicated above. 11. Records as produced by Mr. Debnath, learned Addl. P.P. is returned.