IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL C-482 No. 315 of 2005 Devendra Vikram Singh and another ……..Applicants Versus State of Uttarakhand and others ….Respondents. Present: Mr. B. S. Adhikari, Advocate for the applicants. Mr. Nanda Arya, AGA for the State of Uttarakhand/respondent no.1 Mr. B. D. Upadhyay, Advocate for the respondent nos. 2 and 3. Date of Decision: 26.08.2010 Hon’ble Sudhanshu Dhulia, J (Oral) This Criminal Misc. Application under Section 482 of Cr.P.C. has been filed by the applicants challenging the order dated 1.4.2005 passed by the Sessions Judge, Bageshwar in Criminal Revision No. 2 of 2005 setting aside the order dated 3.2.2005 passed by the Sub Divisional Magistrate, Bageshwar in a case relating to Section 133 of Cr.P.C. Brief facts of the case are that the applicants before this Court moved an application under Section 133 of Cr.P.C. before the Sub Divisounal Magistrate, Bageshwar stating that the opposite parties, which have been presently impleaded in this application as respondent nos. 2 and 3, have raised obstruction on their ‘Khet’ bearing No. 527 as a consequence of which his access to the “public path” which is adjacent to ‘Khet’ No.527 has been blocked which constitutes a public nuisance as defined under Section 268 of IPC, and therefore, they have a remedy under Section 133 of Cr.P.C. The Sub Divisional Magistrate after calling for a report of the “patwari” came to the conclusion that the opposite parties by raising the construction on their path has actually denied the access of the applicants on a public path. Hence, order for removal of construction question was passed by the Sub Divisional Magistrate under Section 133 of Cr.P.C. This order of the Sub Divisional Magistrate dated 3.2.2005 was challenged by the opposite parties before the Sessions Judge in a Criminal Revision bearing No.2 of 2005. The revisional Court after examining the order of the Sub Divisional Magistrate as well as the evidence available on record, more particularly the report of “Patwari” came to the conclusion that the Sub Divisional Magistrate has wrongly taken cognizance under Section 133 of Cr.P.C. and passed order therein, as the remedy available to the applicant is only a “private law” remedy and there is no remedy available under “Public Law”. Referring to the report of the “Patwari” the revisional court has stated that what has been reported by the “Patwari” in his report is that by raising obstruction on ‘Khet’ No.527 (which is private property of respondent nos. 2 and 3) the access of the applicants to a public path which they have made by raising stairs in their Khet nos. 528 and 529 has been denied. Therefore, in sum and substances what has been denied is access by a private individual. This in no manner constitutes public nuisance. It is an admitted fact that the alleged construction/obstruction has been made by the opposite party by raising construction on their own private property. The public path has not been obstructed in any manner. It is still open and ready for use by public at large. What has been denied is access for the applicants to this public path through the private property of respondent nos. 2 and 3. In the considered view of this Court, this in no manner constitutes a nuisance as defined under Section 268 of IPC and, therefore, there was no occasion for the Sub Divisional Magistrate to take cognizance under Section 133 of Cr.P.C. The order dated 3.2.2005 passed by the Sub Divisional Magistrate, Bhageshwar has rightly been rejected by the Sessions Judge, Bageshwar vide order dated 1.4.2005. This Court finds no infirmity with the order passed by the revisional Court. The present criminal revision is absolutely devoid of merit and is liable to be dismissed and is hereby dismissed. Interim order, if any, is also vacated. No order as to costs. The Registry is directed to send a copy of this order to the court concerned for necessary compliance. (Sudhanshu Dhulia, J) 26.08.2010 Avneet