CR. W. J. C. No.9 OF 1998 In the matter of an application under Article 226 of the Constitution of India. **** Raj Kishore Chaudhary, son of Late Thakur Chaudhary, resident of Mohalla Sultanganj, P.S. Sultanganj, District Bhagalpur…………..Petitioner Versus 1. The State of Bihar 2. The District Magistrate, Bhagalpur 3. Sub-Divisional Officer, Sadar, Bhagalpur 4. Anchal Adhikari, Sultanganj, P.S. Sultanganj, District Bhagalpur 5. Vijay Chaudhary, son of Late Asharfi Chaudhary, Resident of Mohalla, Upper Road near Police Phandi, P.S. Sultangaj, District Bhagalpur……………………Opposite Parties...Respondents **** For the Petitioner: Mr. Durganand Jha, Advocate For the State: Mr. Mithilesh Kumar Pathak, A.C. to Standing Counsel No.17 For Respondent No.5: Mr. B.P. Pandey, Sr. Advocate With Mr. Jagannath Singh, Advocate **** P R E S E N T THE HON'BLE MR. JUSTICE JAYANANDAN SINGH Jayanandan Singh, J. Heard learned counsel for the petitioner and learned counsel for the State. 2. Petitioner has filed this writ application challenging the order dated 06.10.1997 passed by the learned 5th Additional Sessions Judge, Bhagalpur in Criminal Revision No. 155/97 by which the learned Additional Sessions Judge has dismissed the revision petition of the petitioner and confirmed the - 2 - order passed by Sub-Divisional Magistrate, Sadar Bhagalpur dated 04.02.1997 in Misc., and has also challenged the said order of Sub-Divisional Magistrate. 3. Petitioner has formulated the following grounds in his writ application for challenge to the said orders :- “(ii) For that the learned Magistrate has not adopted the correct view while passing the order dated 4.2.1997 in Misc. Case No.161/96 (Annexure-5) because if the Opposite Party denied the existence of the right then it was incumbent upon the Magistrate to take steps under section 137 Cr.P.C. which provides that after such a denial the Magistrate has to conduct an enquiry and in that enquiry the person denying the existence of public right alone has right to lead evidence and if he could have produced the reliable evidences in support of such denial. If no evidence was/is produced then it is open for the Magistrate to proceed in a manner as laid down in Section 138 Cr.P.C. But in the instant case the Magistrate has not followed the said procedure and only on the basis of the local investigation by Halka Karmachari, has dropped the proceeding which is fit to be set aside. (iii) For that there being no sufficient material for denying the Public road the learned two courts below should have allowed the case of the petitioner. (iv) For that both the courts below ought to have considered - 3 - and evaluated the materials adduced by the petitioner and should not have based upon the report of Circle Officer only which is self contradictory (v) For that the two courts below ought to have appreciated that the Government records prima facie show the land as the Public rasta and it is being encroached upon Respondent no.5 for his illegal and wrongful gain. (vi) For that both the courts below had sufficient materials before them to decide the road in question as public road and by not doing it, both the courts below have failed to exercise the Jurisdiction vested in them by law. (vii) For that the two courts below ought to have appreciated that this Hon’ble Court has decided in catena of decisions that where a dispute relates to land used by the Public and an obstruction alleged in the application affects the right of public, the remedy under section 133 Cr.P.C. is the proper remedy even though the dispute relates to the possession of the land and thus should have directed the Opposite Party respondent No.5 to remove the un-authorised encroachment made by him upon the public road creating nuisance and ought to have made the proceeding absolute against Respondent no.5. (viii) For that both the courts below have failed to appreciate that a proceeding Under Section 133 Cr.P.C. can not be dropped on the statement of Halka Karmachari without recording the evidence because such an order is illegal in the eye of law. (ix) For that the two courts below ought to have appreciated that the provisions Under section 137 Cr.P.C. are mandatory and a - 4 - Magistrate has no jurisdiction to ignore them. If these provisions are ignored, the order is nullity. In the instant case provisions of Section 137 Cr.P.C. have been ignored and, therefore, both the orders contained in Annexures-5 and 7 are nullity.” 4. In support of his grounds, learned counsel for the petitioner relied upon judgment of this Court in the case of Kundan Bahadur Singh Versus Patna Municipal Corporation (reported in 1984 BLJR 69) and a judgment of the Apex Court in the case of the Kachrulal Bhagirath Agrawal and others Versus State of Maharashtra (reported in AIR 2004 Supreme Court 4818). He submits that the learned S.D.M. has rejected the petition of the petitioner to initiate a proceeding under Section 133 of the Code of Criminal Procedure merely on the report of the Circle Officer. He submits that as per law settled in the aforesaid judgments of this Court and by the Apex Court, it was mandatory on the part of the learned Magistrate to take steps in the matter in terms of Sections 137 and 138 of the Cr.P.C. He submits that the order of the learned Magistrate is bad on account of non- compliance of the mandatory procedure laid down under the aforesaid sections. He submits that in - 5 - the survey records, the land is recorded as rasta. Therefore, it was incumbent upon the learned Magistrate to initiate a proceeding, ask for show cause, receive evidence and then decide the matter. Without entering into evidence, it was not open to the learned Magistrate to reject petition of the petitioner. 5. This Court has perused the order of the learned Magistrate. From the order it appears that on the petition of the petitioner, for initiation of a proceeding under Section 133 of the Code, a report was called for. There was report of Halka Karmchari and Circle Inspector also and thereafter Circle Officer also submitted report and in his report, the Circle officer found that the land in question measuring 60’ x 10’ was recorded as rasta in survey records, but this was not being used as rasta since ages. The Circle Officer also found that the house of the opposite party was on the adjoining plot on which a latrine also exists surrounded by boundary walls. In the report Circle officer mentioned that the latrine was by the side of the disputed land and it was actually the petitioner, who had demolished the - 6 - wall on the western side and had created the dispute. Therefore, the Circle Officer concluded that there was no requirement for initiating a proceeding under Section 133 of the Cr.P.C. The learned Magistrate agreed with the said report and rejected the application of the petitioner. The learned revisional court also went through the report and found it correct and has held that the order of the learned Magistrate is correct and in accordance with law. 6. Learned counsel for the petitioner submits that it was mandatory on the part of the learned Magistrate to take steps under sections 137 and 138 of the Cr.P.C., record evidence and decide the proceeding. He is right but that step has to be taken only when on receipt of a report from the police or on the other information, the learned Magistrate considers that step has to be taken for removing the nuisance. Obviously thereafter he has to initiate a proceeding and take follow-up action as provided under Sub- section (1) of Section 133 of the Code. When the report itself shows that there was no requirement for initiation of a proceeding and the Magistrate agrees with that, no proceeding - 7 - stands initiated and the Magistrate was not required to adhere to the mandatory procedure as laid down by the court. 7. In the circumstances, I do not find any merit in any of grounds, as quoted above. Accordingly, I do not find any merit in this writ application and the same is dismissed. (Jayanandan Singh, J. Patna High Court, Patna The 14th May, 2010 N.A.F.R. (B.T.)