IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application No. 201/2005 Bhawan Singh & Ors. …….Petitioners Versus State of Uttaranchal …….Respondent July 5, 2010 Hon’ble Dharam Veer, J. Heard Mr. Pankaj Purohit, Advocate for the petitioners and Mr. Prabhakar Joshi, Brief Holder for the State. By means of this petition, moved under Section 482 of Code of Criminal Procedure, 1973 (for short, CrPC), the petitioners have prayed for quashing the conditional order dated 1.9.2001 passed by the SDM, Tharali in Criminal Case No. 33/2001, State v. Bhawan Singh & Ors. as well as the order dated 4.3.2005 passed by the Sessions Judge, Chamoli in Criminal Revision No. 39/2001 Smt. Gaura Devi & Ors. v. State of Uttaranchal. In brief, the case of the petitioners is that Pradhan of village Talwari and other villagers moved applications on 21.8.2001 and 31.8.2001 with the averments that petitioner Bhawan Singh Tamta and his son Vijay Singh have stopped the way which is going towards the Govt. Degree College and which is a bandobasti public way by their illegal possession. Naib Tehsildar, Tharali has inspected the place and submitted his report dated 31.8.2001 and specifically stated in his report that khasra no. 1029 is a public path which was closed by the petitioners and on the way they have constructed a Goshala by grass and have taken possession over khasra no. 1030 by fencing the wires. Khasra no. 1030 land was allotted for the Govt. Decree College, Talwari. On the report of Naib Tesildar, SDM, Tharali has issued a conditional order dated 1.9.2001 under Section 133(1) CrPC to the petitioners with direction to remove the abovesaid obstructions up to 4.9.2001 or appear on 5.9.2001 to show cause. Petitioners Gaura Devi and Vijay Singh appeared before the SDM on 5.9.2001 and stated that they are not at all concerned with the abovesaid land and petitioner Bhawan Singh is not feeling well and medical certificate was produced that Bhawan Singh was advised to rest from 4.9.2001 to 11.9.2001. However, Bhawan Singh on the wrong pretext has not appeared before the SDM on 4.9.2001 and filed a revision before the Sessions Judge, Chamoli and was present before the Sessions Judge, which reveals that intentionally he was not present before the SDM on 5.9.2001 and have gone in the court of Sessions Judge, Chamoli. After hearing learned Counsel for the parties, learned Sessions Judge has dismissed the revision vide order dated 4.3.2005. From the perusal of the record, it reveals that learned SDM has passed the conditional order dated 1.9.2001 under Section 133(1) CrPC for which he is authorized to pass the order under the law and the petitioner Bhawan Singh by the wrong pretext intentionally has not appeared before the SDM on 5.9.2001 and sent a wrong certificate and he has gone in the court of Sessions Judge, Chamoli. The petitioners had remedy to file the written statement before the SDM and produce the evidence whatever they had in possession to prove the case. But instead of following the procedure prescribed in chapter X(B) of CrPC, they filed revision before the Sessions Judge just to delay the case and have tried that the matter could not be decided as they were illegally encroached in public path of khasra no. 1029 and also encroached the land of khasra no. 1030 which was allotted to Govt. Degree College, Talwari. In this way, from the perusal of the record it reveals that the petitioners have illegally taken the possession of plot no. 1030 and also closed the public path situated on khasra no. 1029 and, therefore the students and villagers were facing the difficulty in going from that area. Having considered the arguments advanced by learned counsel for the petitioner and perusal of the materials available on record, I do not find any illegality or impropriety in the conditional order dated 1.9.2001 passed by the SDM, Tharali and in the order dated 4.3.2005 passed by the Sessions Judge, Chamoli, which are correct and justified on the basis of the facts and circumstances and the evidence discussed above. 2 In the result, the petition lacks merit and is liable to be dismissed. Accordingly, the petition is dismissed. Interim order dated 27.4.2005 stands vacated. (Dharam Veer, J.) 5.7.2010 PRABODH 3