IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.33980 of 2007 RAJENDRA GOPE Versus STATE OF BIHAR & ORS ----------- For the petitioner : Mr. Binod Kumar Ambastha, Adv. For the State : Mr. Jharkhandi Upadhyay, A.P.P. For Opp.Party No.2 : M/S Narendra Prasad, Sr. Advocate ,and Akashdeep, Advocate ________ O R D E R The first party of a proceeding under Section-133 Cr.P.C. being case no.156(M) of 2004 is aggrieved by order dated 18.5.2007 passed by Sri Brajendra Kumar Srivastava , Addl.Sessions Judge- IX,Patna in Cr.Revision No.673 of 2004 , whereby he has upheld the order dated 18.8.2004 passed by the learned Subdivisional Magistrate, Sadar Patna in the aforesaid case No.156(M) of 2004, whereby he has dropped the proceeding in view of the fact that the land in question was not public passage and was in personal use of the members of the Opp.Parties. The facts of the case may be noticed with brevity.The petitioner herein filed a petition before the learned Subdivisional Magistrate,Patna Sadar , against Opp.Party nos.2 to 5 alleging that they were residents of Mohalla-Sabjibagh,Birla Mandir Road and the house of the petitioner was situated on Plot nos.993,994 and 995 and the house of the Opp.Parties was adjacent west to their house and that they were obstructing a four feet wide 100 feet long gali in the southern side of the houses of both the parties, which was in existence - 2 - and connected as a common rasta since long to the main Birla Mandir road from the western side.It was also alleged that the said gali was shown in the Municipal Survey Map.The Opp.Party nos. 2 to 5 are alleged to have closed the said gali on 13.3.2003 with bricks and other materials and also by erecting a wall by encroaching the said gali and when the petitioner objected they became very furious and were bent upon to resorting to overt acts. It is said that a proceeding under Section-107 Cr.P.C. and criminal case under Sections-337,323,324/34 I.P.C. were pending before the Subdivisional Magistrate, Patna and the Chief Judicial Magistrate,Patna respectively between the two parties. It is also said that earlier a petition under Section-133 Cr.P.C. being Case No.166(M) of 2003 was filed on 17.3.2003 against the Opp.Party nos.2 to 5 for allegedly having caused obstruction and encroachment which was rejected on 2.12.2003 on the basis of a vague and perfunctory report of the Executive Magistrate, Ibrar Ahmad Khan without initiating a proceeding under Section-133 Cr.P.C. on the ground that the Enquiry Magistrate had reported that the said gali was a part and parcel of the house of the Opp.Party nos.2 to 5 and that the same was a purely private road in their use. It has been submitted by the learned counsel for the petitioner that the said Municipal Map had been filed by the petitioner in the court, but the learned court below had failed to appreciate the position of the gali in the map and ignoring the same had dismissed his application and the Revisional court had followed suit. On the other hand, it was submitted by the learned counsel - 3 - for the Opp.Party nos.2 to 5 that the first petition filed by the petitioner herein under Section-133 Cr.P.C. had been numbered as Case No.116(M) of 2003 wherein on a direction of the Subdivisional Magistrate, Patna Sadar ,Ibrar Ahmad Khan , Executive Magistrate, inquired into the matter and submitted his report through Memo No.255 dated 19.8.2003 stating that the passage in question was not a public way and was in exclusive possession and personal use of Opp.Parties since long and was closed in the eastern side by a 6 feet old wall as also from the western side by an iron gate. It was further submitted that no objection was raised by the petitioner to the findings of the Enquiry Magistrate and he accepted the same and it was on the basis of the said report of the learned Executive Magistrate that the Subdivisional Magistrate, Sadar Patna dropped the said proceeding by order dated 2.12.2003 and the petitioner not having moved any superior forum against the said order, the same had achieved finality and now the petitioner could not agitate his grievances by filing another petition under Section-133 Cr.P.C. on the same set of facts. The learned counsel further sought to point out that the learned court below after hearing the parties and after perusing the documents available on record including the enquiry report dated 30.6.2004 , the enquiry report dated 19.8.2003 , as also the order dated 2.12.2003 passed in Case No.116(M) of 2003 had rightly come to the conclusion that the land in question was not a public passage and was in the personal use of the members of the Opp.Parties and had, accordingly, dropped the proceeding in the instant case. - 4 - It has also been submitted by the learned counsel for the Opp.Party nos.2 to 5 that the petitioner had not filed Criminal Revision no.673 of 2004 with clean hands rather he had deliberately suppressed the enquiry reports submitted by Ibrar Ahmad Khan and Birendra Kumar Tarun , as also the documents brought on record by the Opp.Parties before the learned Subdivisional Magistrate, Patna Sadar and that the instant proceeding was sought to be initiated only with ulterior intention and malicious motive of harassing them. Admittedly, the first attempt by the petition to initiate a proceeding under Section-133 Cr.P.C. being Case no.116 (M) of 2003 had been dropped by the Magistrate on the basis of a report submitted by the Executive Magistrate to the effect that the gali in question was not a public passage but was the private passage of the Opp.Parties and was in their exclusive possession. The report was neither objected to nor challenged in a superior court of law and the first proceeding having been dropped, the petitioner sought to agitate the same matter once more by filing the instant petition being Case no.156 (M) of 2004. It is well settled law that power under Section-133 Cr.P.C. is to be exercised in the public interest where speedy remedy is necessary and cannot be postponed. In such situation, the Magistrate should remember that Section-133 Cr.P.C. applies only to existing and not to potential nuisance i.e. to what may become a nuisance in the future nor does it apply where the nuisance has ceased. The Magistrate should also remember that he is acting purely in the interest of public - 5 - and he should be on his guard against use of the Section as a substitute for civil litigation to settle private suit or to establish the title of a particular individual. In the instant case, admittedly, there are two reports of two different Magistrates in two proceedings to show that the gali in question was not a public passage, but was a passage in the exclusive possession and private use of Opp.Party nos. 2 to 5.The reliance on the alleged Municipal Map by the petitioner by suppressing material facts does not come to his rescue. With two concurrent findings of two Subdivisional Magistrates, the first of which has not been impugned before a superior forum and the second being approved by a Revisional court, this Court in a proceeding under Section-482 Cr.P.C. would be loath to interfere with the same and the petitioner may seek his remedy before an appropriate forum. I find no merit in this application, which is accordingly dismissed. ( Abhijit Sinha, J ) Patna High Court, Patna Dated : the 17th September,2008 Nawal Kishore Singh/ A.F.R.