IN THE HON^BLE HIGH COURT OF CHHATISGARH/ ^/ ATBILASPUR - ~. ^ Cr. M.P. No. ^00 of 2009 ^ Applicant : Rainkumar, Son of Gendu Panika, aged ., J^", . _' .-•'^^y about 42 years, resident of North ^y'^^'' ?'u-;;'^:^'•**...'•° Jhagrakhand, Police StaUon and Tahsil ^0" ..-^ 0 ^.v;:" •^^ ^ •:A^ ;^., ^yi:°t i.--^\^ ••"~'L^^°'°^,^V Manendragarh, District Korea (C.G.) Respondents Versus :1) Sukhcharan Bai, W/o. Kallu aged about 58 years, resident of Sarkari Dafai, North Jhagrakhand, Police Station and Tahsil Manendragarh, District Korea (C.G.) :2) State of Chhattisgarh through District Collector Korea (C.G.) PETITION UNDER SECTION 482 J^F THE CODE OF CRIMINAL ^P^OCEDURE FOR QUASHMENT OF ORDER DATED 20.12.2005 PASSED BY THE SUB DIVISIONAL MAGISTBATE, MANENDRAGARH IJ^- MISC, CR.CASE N0.13/^005 AND ORDER DATED 1^.01.2009 PASSED BY IST ^DDITIONAL SESSIONS JUDGE, MANENDRAGARH, DISTRICT KOREA IN CR.R. N0.158/2QQ6 ^ H1GH COURT OF CHHATTiSGARH : BILASPUR Sjnaie Bench: Hon'ble Shri Manlndra Mohan Shrivastava. J. APPLiCANT /• PETlTiOMER NON-APPLiCANTS /RISPONDENTa Cr.M.P. N0.200/09 Ramkumar versus Sukhcharan Bai and another APPLiCATiON UNDER SECTiON 4S2 OF THE CODE OF CRirvilNAL PROCEDURE, 1973 Present: - Shri H.B. Agrawai, Senior Counsei along with Ms. Usha C'nandrakar, counsel for the petitioner. Shri Prafuii Bharat, counsei for respondent No.1. Shri Vaibhav Goverdhan, Panei Lawyer for the State. ORAL GRDER (Passed on 8th of November, 2011) This petitlon has been fiied by the petitsoner, aggrieved by order dated 19/1/09 passed bythe First Additional Sessions Judge, Manendragam in criminal revision No.158/06 affirming the order dated 20/12/05 passed by the Magistrate in the matter of appiication filed by respondent No.1 alieging pubiic nuisance. 2. Briefly stated, the facts are that the respondent No.1 moved an appilcation before the Coilector, Korea alieging that the petitioner has constmcted a garage over the vacant land used by the respondent No.1 as Court Yard and for Nistari purposes. The matter was entrusted to the Sub-Divisionai Magistrate whereafter the Sub-DJvisional Magistrate held enquiry. The report of Tahsiidar and poiice of Poiice Station - Manendragarh was obtained and after issuance of notice to the petitioner, recording evidence, the Magistrate passed an order on 20./12/C55, directing removal of construction by recording a finding that the construction has affected Nistari rights of respondent No.1. The aforesaid order was assaiied in .r^ ' ^^ % ^, ^. ^.L 1 § '^.'^^^^ ^-..,.3^.^^' revision by the petitioner which too has been dismissed whereafter this petitlon has been fiied. 3. Learned counsei for the petitioner submits that the Executive Magistrate has exceeded its jurisdiction in invoking powers under Section 133 CrPC without recording any speciflc finding wlth regard to public nuisance and without discussing the materiai evidence on record and arriving at a satisfaction that by the act of the petitioner, the case of removal of nuisance from public piace or from anyway has been made out. He submits that the appiication filed by the respondent, the materiai coilected during investigation from various authorities and the evidence ied by the parties does not make out any case of nuisance as contempiated under Section 133 (1) (a) of CrPC. He submits that present is a case where the Magistrate has used the power to enforce the right of easement. He aiso submits ihat such powers are to be exercised only in the case of urgency when other remedy couid not be taken in the imminent circumstances whereas in the present case, simple dispute with regard to the easementary right aileged to be exercised by respondent No.1. He further submits that as no preiiminary order has been passed by the Magistrate as contempiated under Section 133 of CrPC, proceedings are otherwise abuse of the process of iaw. in support of his contention, iearned counsei for the petitioner reiies upon the decision in the cases of State of M.P. v. Kedia Leather & Liauor Ltd. and others. 2003 CrLJ 4335. C.A. Avarachan v. C.V. Sreenivasan and another. 1996 f7'l SCC 71 and Naravan Sahu v. Sub-Divisionai JViaaJstrate. Jaipur.1986 CrU 102. 4. Per contra, iearned counsel for respondent No.1 wouid submit that respondent No.1, in substance, raised a compiaint that because of construction raised by the petitioner, her right to way has been adversely affected and &-.':'-.. —i^ "^i^ •i therefore, present is a case of public nuisance and the Magistrate has ample jurisdiction to pass such an order. He further suhmits that the power has been exercised by the Magistrate after making a detaiied enquiry, giving proper notice to the petitioner, obtained report from Tahsiidar and poEice station and recording evidence of the parties. He submits that the materiat on record supports the finding which has been recorded by the Magistrate and therefore, no perversity is there so as to warrant interference by thls Court. 5. Learned State counsei submits that the State has been impleaded as a formai party. 6. The appiication filed by respondent No.1 before the Magistrate states that the petitioner has constructed a garage which is causing inconvenience in using courtyard and aiso affected her nistari rights. The application fiied by respondent No.1 shows that a compiaint was made with regard to the obstruction in access to her own house. The Magistrate thereafter directed report to be submitted by the Tahsildar. The report which has been submitted by Tahsiidar states that the petitioner has constructed a house which is afrecting the access of respondent No.1 and has thereby affected her easementary rights. Aiong wiih the report, a map was aiso annexed. The map shows that there are two roads which are cutting across. The report itself does not ciariiy as to whether the piace where construction has been raised, was infact used as a pubiic way so as to stop construction of house, the respondent No.1 seized to have access to the public way. The poiice of poiice station-Manendragarh also submitted report but the report aiso does not give a ciear picture and on the other hand, it is stated that the compiaint is exaggerated. 7. Though certain statements have been recorded, from perusal ofthe order passed by the Magistrate, it is found that the Magistrate has not deait with the aforesaid aspects, the Magistrate neither recorded findings on detailed statements of number of persons nor an attempt has been made to find out whether there existed any pub'lic way and whether construction raised by the petitioner has resuited in obstruction En a public way. The enquiry of the Magistrate is oniy confined to the aspect as to whether easement of the respondent no.1 has been afrected without specific finding with regard to the existence of pubtic way and obstruction on the pubiic way. Therefore, in the opinion of this Court, the order has been passed by the Magistrate without making due and proper enquiry. The impugned orders passed by the Magistrate as weii as revisionai Court cannot be sustained in Jaw and are set aside. The matter is remanded back to the Sub-Divisionai Magistrate to hoid due and proper enquiry in the matter and pass appropriate order after giving both the parties due and proper opportunity of hearing and aiiow the parties to iead orai or documentary evidence, caiiing reporfr from other functionaries inciudina poiice and Tahslidar, if necessary. The petition is accordingiy allowed. Deepti Sd/- Manindra Mohan Shrivastava Judge 1