IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application No. 151 of 2007 Om Prakash and another. ………. Applicants. Versus State of Uttarakhand and another. ..…. Respondents Present : Sri Rajendra Singh, Advocate for applicant. Sri P.S. Bohara, Brief Holder for the State. Hon’ble Servesh Kumar Gupta, J. 1. By way of this petition under Sections 482, 483 Cr.P.C. powers of this Court are being invoked to quash the order of Sub Divisional Magistrate (hereinafter called as Magistrate) dated 18.01.2005 in case no. 33 of 2004 under section 133 Cr.P.C. The said order, in revision filed by the petitioner, was affirmed by Additional Sessions Judge, Haridwar vide his order dated 09.03.2007 so a prayer has also been made in addition to quash the judgment of Additional Sessions Judge too. 2. It is pertinent to mention that none turn up on behalf of respondent no. 2 Shivraj Singh Chauhan to agitate this petition, so this Court has rendered hearing to learned Brief Holder, State of Uttarakhand and learned counsel for the petitioners. 3. Having heard the learned counsel for the parties, it appears that the entire controversy arises for a ‘way’ (measuring 7’ width) which is used by Shivraj Singh Chauhan to reach at the main road connecting Haridwar and Laksar. This ‘way’ is located in the residential area of village Ferupur, 2 Ramkheda within the territorial jurisdiction Police Station Pathri, District Haridwar. The dispute arose when Shivraj Singh Chauhan moved an application dated 13.10.2004 to the Magistrate that this 7’ width has been narrowed by Om Prakash, Chander and their sons Sukhbir and Tejpal on dated 10.10.2004 by putting a heap of soil over the same. There intention is to make adverse possession over the ‘way’. While resisted petitioners intimidated him. He also stated that there is no alternate ‘way’ available to him to connect main road from his house, so prayed for issuing favourable direction to Police Station Pathri to interfere in the matter and check the petitioners from making adverse possession. It was also the case of Shivraj Singh Chauhan that he purchased the plot of land connecting this ‘way’ on 01.07.2003 through a sale deed from its previous owner. The Magistrate directed the police to inquire into the matter and submit report. Responding the order of Magistrate, police submitted a report dated 29.10.2004 considered by Magistrate on 01.11.2004 ratifying the contents of allegation of Shivraj Singh Chauhan. It was stated in the police report that Om Prakash has hampered this ‘way’ of Shivraj Singh Chauhan in such a manner as to make it unworkable for being used to the cattle and Shivraj Singh Chauhan has no other alternate ‘way’ except this. The report also disclosed that previously 7’ width of ‘way’ was existed ever since the time of its previous owner of the plot from whom Shivraj Singh Chauhan got this sale deed executed. 4. After having this report, the Magistrate issued a conditional order under Section 133 (A) (i) Cr.P.C. to petitioners asking them to remove encroachment or to show cause why this conditional order should not be made final. Receiving service of this order, petitioners appeared before Magistrate 3 and filed their written statement on 22.12.2004 stating that their sale deed of the plot existing in the North of this ‘way’ is as much as old of dated 08.07.1976 and they are owners of plot measuring 42 feet X 24 feet. They denied from making any adverse possession over the ‘way’ in question. Rather they claimed that Shivraj Singh Chauhan has increased area of plot by raising a wall diagonally. They filed photocopy of the sale deed dated 08.07.1976 along with their written statement. The allegations stated in the written statement were further rebutted by Shivraj Singh Chauhan in a rejoinder affidavit filed on 27.12.2004. The Magistrate after hearing both the parties passed impugned order dated 18.01.2005 making the conditional order as final one. 5. The contention of the learned counsel for the petitioners is that Magistrate has not acted in accordance with sub-section (2) of Section 137 Cr.P.C. read with sub-section (1) of Section 138 Cr.P.C. Section 137 (2) envisages that if the Magistrate finds that there is no such evidence in support of denial of claim against him, then he shall proceed as laid down in Section 138 Cr.P.C. and Section 138 Cr.P.C. enjoins the Magistrate to take evidence in the matter as in a summons case. Procedure to take evidence of summon’s case is prescribed under Section 254 Cr.P.C. which enjoins that Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produced in his defence. So the order of the learned Magistrate dated 18.01.2005 divulge that he has simply made the conditional order final on the basis of police report. He has not rendered any opportunity of adducing the evidence by either of the parties in support of their respective claims. This way the order 4 is not sound and liable to quashed. The impugned order dated 18.01.2005 as well as order of affirmation of the same dated 09.03.2007 passed by Additional Sessions Judge are hereby set aside and the matter is remitted back to the court of Sub Divisional Magistrate, Haridwar with a direction that he will hear the matter afresh and will render opportunity of hearing to both the parties i.e. Shivraj Singh Chauhan and Om Prakash to adduce the evidence in support of their respective claims and then pass a final order under Section 138 (2) Cr.P.C. It is made clear that since now till the matter is finally adjudicated by the Magistrate, as directed by this Court, no encroachment as alleged will be made by Om Prakash or his sons or his nephews or any other relatives, on the ‘way’ in question and the width of ‘way’ will be maintained as 7 feet till the learned Magistrate reaches at any conclusion on the substantial evidence produced by either of the parties before him. It will be desirable for the Magistrate to adjudicate this matter preferably within six months. 6. With this direction, the petition is disposed of. (Servesh Kumar Gupta, J.) 29.09.2011 SKS