IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Revision No.473 of 2007 Mukhdeo Prasad, son of late Harihar Prasad, resident of village- Hirapakur, P.S.-Jadopur, District- Gopalganj. ……..Petitioner Versus 1. The State of Bihar. 2. Gumani Chaudhary, son of Bhagrashan Chaudhary. 3. Manager Chaudhary, son of Bhagarshan Chaudhary. 4. Kailash Chadhary, son of Jatan Chaudhary. 5. Kedar Chaudhary, son of Jatan Chaudhary. (All resident of village- Hirapakur, P.S.-Jadopur, District- Gopalganj) ……..Opposite Parties. ---------------------------------- 09. 13.12.2011 The 1st party petitioner has preferred this revision application against the order dated 17.01.2007 passed by the learned Additional Sessions Judge, F.T.C.II, Gopalganj in Cr. Rev. No.438/2005/173/2005 by which the order dated 17.09.2004 passed by the learned Sub-Divisional Magistrate, Gopalganj has been set aside. The case of the 1st party petitioner is that in the Mauza-Hira Pakar, the members of the second party- opposite parties have encroached the road in Khesra No.85 and has caused hindrance to the people by thatched construction. A report was called for from the Circle Officer, Gopalganj. Notices were issued to the second party opposite party. They filed their show-cause and denied any encroachment. Thereafter, inquiry was made under Section 2 138 Cr.P.C. The evidence was taken. The 1st party petitioner produced his evidence. Thereafter, the second party opposite party did not produce any evidence in spite of the several opportunities given to them. After inquiry, it was found that the members of the second party opposite party have encroached the land of the public road and the members of the second party were directed to remove the encroachment. The members of the second party filed Cr. Rev. No.435/2005 against the order dated 17.09.2004 passed by the learned Sub-Divisional Magistrate. After hearing both the parties, the order has been passed. The case of the 2nd party opposite party is that the Tapeshwar Kurmi was the grand-father of the 1st party. The fathers of the 2nd party opposite party had taken oral sale of 2 Kathas from Tapeshwar Kumari for a sum of Rs.500/- in presence of villagers 40 years ago. At that time, the plot no.160 was ditch. The fathers of the opposite party filled the land and thereafter, they constructed their residential planning over it. They have not encroached upon any public road. The fire had broken some years back in the residential planning of the opposite party in which several documents burnt to ashes. The report of Anchal Amit is false and 3 fabricated and the proceeding is fit to be dropped. Heard the learned counsel for the petitioner and the learned counsel for the opposite parties and perused the records, it appears that a petition was filed by the petitioner before the learned Sub-Divisional Magistrate on 13.09.1995. Thereafter, the learned Sub-Divisional Magistrate called for a report from the Circle Officer vide order dated 13.09.1995. After the receipt of the report of the Circle Officer, the learned Sub-Divisional Magistrate issued notice to the second party opposite party to show-cause. On 17.10.1995, the second party opposite party filed petition for granting time to file their show-cause and the case was adjourned to 1.11.1995. Again time petition was filed on behalf of the second party opposite party. Ultimately, they filed show- cause on 14.12.1995. After the preliminary inquiry, it was found vide order dated 15.03.1996 that there has been encroachment on public land and vide order dated 31.07.2001, the case was fixed for evidence on 17.08.2001. On 7.12.2001, a petition was filed on behalf of the second party opposite party for hearing on the show-cause and the case was adjourned to 12.12.2001. On 12.12.2001, the matter was adjourned to 19.12.2001. On 19.12.2001 also, the 4 opposite party took adjournment. The case was adjourned from time to time for producing evidence on behalf of the parties. After hearing both the parties, it was found that the encroachment has been made by the 2nd party and a full- fledged inquiry is required under Section 138 Cr.P.C. As such, the second party was directed to produce their evidence on 6.03.2002. This order was passed on 20.02.2002. It appears that the first party examined his witnesses P.W.1, Mukhdeo Pd., P.W.2, Khushilal Sah, P.W.3 Batak Prasad, P.W.4 Zakir Hussain, but, in spite of several opportunities given to the 2nd party opposite party, they did not produced any evidence finding no way out, the learned Magistrate considered the case of the first party, report submitted by the C.O., evidence of the first party and the show-cause filed by the second party and passed the impugned order holding that the second party have encroached upon the public road and as such, the opposite parties were directed to remove the encroachment within 30 days from the date of the order. Against that order, the second party preferred Cr. Rev. No.435/2004, which was allowed and the order dated 17.09.2004 was set aside vide order dated 17.01.2007 directing the Sub-Divisional 5 Magistrate to hold further inquiry. It further appears from the impugned order that the learned Additional Sessions Judge has not considered the record of Case No.1078/1995 and has again directed the S.D.M. to hold further inquiry, which is, in my opinion, not in accordance with law. The learned Sub-Divisional Magistrate has already given more than sufficient opportunity to the second party opposite parties to adduce their evidence, but, the second party opposite parties did not take care and finding no way out, the learned Magistrate has proceeded the case and after considering material on the record has passed the order. For the reasons aforesaid, in my opinion, the impugned order passed by the learned Additional Sessions Judge is not in accordance with law. The impugned order is set aside. The order dated 17.09.2004 passed by the learned Sub-Divisional Magistrate in Case No.1078/1995 under Section 133 Cr.P.C. is restored. In the result, this revision application is allowed. V.K. Pandey ( Amaresh Kumar Lal, J.)