IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.28679 of 2007 RAM BILAS SINGH, Son of Late Ram Udit Singh, Resident of village Baraith, P.O. Damdama, P.S. Nima Chandpur, District Begusarai ……. Petitioner Versus STATE OF BIHAR & ORS …….. Opp. Parties ----------- For the petitioner : Mr. Bipin Kumar, Advocate For the State : Mr. Jharkhandi Upadhaya, A.P.P. O R D E R The first party to a proceeding under section 133 Cr.P.C. being case no. 223 of 2005 has prayed for the quashing of the order dated 28.4.2007 passed by Sri Roop Narain Tripathi, the learned Presiding Judge, Fast Track Court No.IV, Begusarai, in Cr. Revision No. 420 of 2006 whereby while setting aside the order dated 23.9.2006 of the learned Sub-Divisional Magistrate, Begusarai, directed the learned Magistrate to hold the enquiry afresh and pass orders in accordance with law. The necessity for the revision against order dated 23.9.2006 arose as the learned Magistrate by the said order had directed the Circle Officer, Begusarai and the officer Incharge of Neemachandpur P.S. to remove the purported obstruction/encroachment allegedly set up by the second party to the proceeding. The said proceeding was started on 13.9.2005 on the basis of a petition submitted by the first party complaining of the second party setting up obstruction / encroachment over a length of public road the full details whereof are available in the orders of the two Courts below as also in the instant application. The members of 2 the second party, impleaded herein as O.P. Nos. 2 to 8, were directed initially to remove the alleged obstruction/encroachment by 21.9.2005 failing which legal action would be taken against them and they were also directed to show cause. It appears from the order of the Magistrate that although the second party filed their show cause they continued to remain absent and did not care to put forward their case notwithstanding final opportunity given to them on 22.8.2006 and accordingly he proceeded to dispose of the lis ex parte and having heard the first party passed orders on 23.9.2005 on a finding based on the report of the Anchal Adhikari, Begusarai, which revealed that the second party had put up temporary structures to house their cattle and thereby caused / obstructed the first party from taking his tractor etc. to his fields situated by the roadside. The order was also based on the fact that Bindeshwar Sah, a member of the second party, filing a petition on 25.3.2006 admitting that he had set up a hut on the public road and promising to remove it within six months. The Magisterial order was impugned before the Sessions Judge in Cr. Revision No. 420 of 2006 and the learned Judge set aside the order since the Magistrate, notwithstanding the denial by the second party of having created any encroachment or obstruction, disposed of the matter without following the mandatory enquiry provided under section 137 Cr.P.C. and relying only on he report of the Anchal Adhikari and the alleged petition of Bindeshwar Sah. 3 Section 137 Cr.P.C. clearly provides that on denial of existence of public right the Magistrate must hold a regular enquiry and take evidence on the point. He cannot decide the matter simply by hearing the parties, inspecting the spot or by perusing documents. In view of the existing procedural law and the cogent reasons assigned by the learned Sessions Judge, I find no scope for interference and uphold his order. In the result there being no merit in this application the same is dismissed. Patna High Court, Patna. Dated : The 25th of June, 2009 Sanjay Pd./A.F.R. (Abhijit Sinha, J.)