IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.45386 of 2006 1. SHIVLAL THAKUR. 2. JAI LAL THAKUR. BOTH SONS OF LATE SUNDAR THAKUR, BOTH RESIDENTS OF VILLAGE-UCHHAL, P.S. BASOPATTI, DISTRICT- MADHUBANI. …………………………………………………………PETITIONERS. Versus 1. THE STATE OF BIHAR…………………OPPOSITE 1ST PARTY. 2. SANJAY SINGH, SON OF NIRBHAY SINGH, RESIDENT OF VILLAGE-UCHHAL, P.S. BASOPATTI, DISTRICT- MADHUBANI. ……………………………………………….OPPOSITE 2ND PARTY. 3. SARYUG THAKUR, SON OF BAUKU THAKUR. 4. BIJAY SINGH. 5. AJAY SINGH. 6. RAJESH SINGH. ALL SONS OF NIRBHAY SINGH, ALL RESIDENTS OF VILLAGE-UCHHAL, P.S. BASOPATTI, DISTRICT- MADHUBANI. ……………………………………………….OPPOSITE 3RD PARTY. ----------- For the Petitioners : Mr. Binod Kumar Singh, Advocate. For the State : Mr. Jharkhandi Upadhyay, A.P.P. For O.P. No.2 : M/s. Rajendra Prasad Singh, Senior Advocate & Mritunjay Kumar, Advocate. ------------ O R D E R Two of the members of the second party before the Sub Divisional Magistrate, Jainagar in Encroachment Case No.20/03-04 have questioned the validity of the order dated 15.3.2005 passed therein by the learned Magistrate directing the petitioners to remove the alleged public nuisance in the form of encroachment from public place and in the event of their failure to do so for the Circle Officer to - 2 - get the encroachment cleared as also the subsequent order dated 20.9.2006 passed by Sri Bateshwar Nath Pandey, First Additional Sessions Judge, Madhubani, in Criminal Revision No.647 of 2005 whereby while dismissing the revision he has refused to interfere with the order dated 15.3.2005. It appears that Opposite-2nd party who was the first party before the learned Magistrate filed an application on 13.4.2004 before the learned Magistrate inter alia stating that Plot No.3377 is a Gairmazurwa Aam Rasta situated in village Selibeli, Tola-Uchhal within Basopatti P.S. in the district of Madhubani and his house is located behind the said Rasta. It is also alleged that the members of the second party have constructed their house over the said plot and have created hindrance to his right of passage of ingress and egress. They had also encroached upon his hand pump thereby depriving him from getting drinking water. On the aforesaid premise a prayer was made for directions to issue for removal of the alleged encroachment. It appears that the learned Magistrate on the basis of the said petition initiated a proceeding under Section 133 Cr.P.C. against the six members of the second party and issued show cause. Show cause was filed on behalf of both parties and thereafter the learned Magistrate called for a report from the Circle Officer, Basopatti vide his letter no.2004 dated 5.3.2004 and the Circle Officer submitted the inquiry report and measurement report with a location map prepared by the Halka Karamchari and Anchal Adhikari respectively vide his letter dated 23.9.2004. Thereafter the learned Magistrate with - 3 - reference to the reports passed the impugned order dated 15.3.2005 without allegedly considering the case of the petitioners and the document of title produced by them. It has been submitted by the learned counsel for the petitioners that the report of the Circle Officer is not complete and is vague. It was also sought to be submitted that the learned Magistrate while passing the impugned order had not perused the document filed by the parties in the right perspective and had passed the impugned order without considering the provisions of Section 138 Cr.P.C. and that the final order ought to have been passed after considering the evidence of the parties under Section 138 Cr.P.C. It was further submitted that the petitioners were not claiming any right over Plot No.5506 and what they were claiming was their raiyati rights over plot no.5507. The further submission by the learned counsel for the petitioners is that they were not given an opportunity to adduce the evidence in support of denial after filing of the show cause in view of the provisions of Sections 137 and 138 Cr.P.C. and as such the passing of the final order under Section 138 Cr.P.C. without complying with the provisions, mentioned above, was definitely against the provision of law and liable to be set aside. Although no show cause or counter affidavit has been filed by O.P. No.2, his learned counsel sought to support the order of the learned Magistrate as also that of the Revisional Court and sought to bring to my notice certain facts which according to him were germane to the adjudication of this case. - 4 - Section 133 envisages issuance of a conditional order and notice for removal of nuisance in certain situations as embodied in Clauses (a) to (f) thereof. Section 135 provides that the person against whom such order has been made shall either perform the act as he is directed to do by a conditional order under Section 133(1) or appear and show cause why he cannot be compelled to perform the act. Where he appears and files show cause and denies the existence of public right, the Magistrate is required to make a summary inquiry to find out whether there is any reliable evidence in support of such denial of existence of public right. If the Magistrate finds that there is substance in such denial he will stay the proceeding until the matter regarding the existence of such right is decided by a competent court; where he does not find any evidence of any such right he will proceed in the manner laid down in Section 138 which provides for full fledged inquiry to be held in accordance with the procedure prescribed for summons cases. From a conscientious reading of the aforesaid provisions relating to a proceeding under Section 133 Cr.P.C., it is clear that in a case where proceedee files show cause and denies the existence of public right , the Magistrate is required to hold inquiry which is to be a summary enquiry under Section 137 followed by a full fledged inquiry under Section 138. In the present case, no inquiry whatsoever appears to have been done by the learned Magistrate and by relying purely on the report submitted by the Circle Officer he has passed the impugned - 5 - order and the revisional court appears to have been remiss about the provisions and procedure narrated above. Due regard being had to the facts and the circumstances of the case and the discussions made in the foregoing paragraphs and without dealing with the merit of the case, I am of the opinion that the matter should be remitted back to the learned Magistrate for fresh consideration in accordance with law. It will not be out of place to mention here that it would be in the fitness of things and in the interest of justice to allow an opportunity to the petitioners to lead evidence as apparently no such opportunity had been given to them. Accordingly, I set aside the impugned orders of the two courts below as being without jurisdiction and allow the application directing the learned Magistrate to reconsider the matter in the light of the observations made above and pass fresh orders. (Abhijit Sinha,J) Patna High Court, Patna. Dated: The 26th of February, 2009. Pradeep Srivastava/A.F.R.