IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.24012 of 2007 HAFIZUR RAHMAN @ TUNTUN, SON OF LATE SHEIKH MD. SHIVALEE, RESIDENT OF VILLAGE-SANTPUR, P.S. NAUTAN, DISTRICT-WEST CHAMPARAN(BETTIAH)……………...PETITIONER. Versus 1. THE STATE OF BIHAR. 2. THE COLLECTOR, WEST CHAMPARAN AT BETTIAH. 3. THE SUB DIVISIONAL MAGISTRATE, BETTIAH SADAR, WEST CHAMPARAN, BETTIAH. 4. THE CIRCLE OFFICER, NAUTAN, WEST CHAMPARAN, BETTIAH. 5. OFFICER INCHARGE, NAUTAN POLICE STATION, BETTIAH. 6. VILKAISH BANO, WIFE OF ABDUL BARI, RESIDENT OF VILLAGE-SANTPUR, P.S. NAUTAN, DISTRICT-WEST CHAMPARAN, BETTIAH. …………………………………………………OPPOSITE PARTIES. ----------- For the Petitioner : Mr. G.K. Yadav, Advocate. For the State : Dr. Mayanand Jha, A.P.P. For O.P. No.6 : Mr. Farooque moazzam, Advocate. ----------- O R D E R The second party to a proceeding under Section 133 Cr.P.C., being Case No.1004(M) of 2004 has prayed for quashing of the order dated 14.2.2007 passed therein by the learned Sub Divisional Magistrate, Bettiah, whereby having found the existence of encroachment on the right of passage of the first party in course of spot verification, he directed the Anchal Adhikari, Nautan, to get the road standing on gair mazarua aam lands measured in accordance with the recent survey map by the Anchal Amin and to get the encroachment over the road removed. The submission on behalf of the petitioner is that there - 2 - being land dispute between him and respondent no.6 she with the help of respondent no.5 got this proceeding initiated on a false plea of her passage being obstructed and the police without spot verification or recording of evidence of villagers recommended for initiating proceeding under Section 133 Cr.P.C. It was also submitted that the petitioner and respondent no.5 are pattidars and the land in question is khatiyani lands of their ancestor whereupon the husband of respondent no.5 had encroached beyond his share of land. Criticizing the police report it was submitted that a jhopri was built over 100 years back in which the petitioner has been living for all his life time peacefully. In this view of the matter the initiation of the proceeding and impugned order was bad in law. Sub-section (1) of Section 133 Cr.P.C. provides for passing of a conditional order for removing a nuisance in the event a case falls within one or the other clauses (a) to (f) thereof and while passing such a conditional order, an opportunity has to be given to the proceedee to file his show cause in the matter. Section137 Cr.P.C. provides that if the proceedee denies the existence of a public right then the Magistrate has to hold an enquiry before proceeding under Section 138 Cr.P.C. From the impugned order, it appears that the learned Magistrate has passed a conditional order in terms of sub section (1) of Section 133 Cr.P.C. but no opportunity has been given to the proceedee to file his show cause denying the existence of a public right. - 3 - Accordingly, the application is allowed and the matter is remitted back to the Magistrate to decide the matter afresh in accordance with law. (Abhijit Sinha,J) Patna High Court, Patna. Dated: The 12th day of August, 2009. Pradeep Srivastava/A.F.R.