Judgment:
Criminal Revision No. 122 of 2001 --- In the matter of an application under Sections 397 and 401 of the Code of Criminal Procedure, 1973 --- Abhay Kumar alias Abhay Kumar Thakur son of Naresh Mohan Thakur, resident of Quarter No. 224/2/1, Chhota Govindpur, Police Station Govindpur, District East Singhbhum … … Petitioner Versus 1. State of Jharkhand 2. Satish Pathak son of Kameshwar Pathak 3. Shankar Prasad alias Jaishankar Prasad son of Ram Swaroop Prasad 4. Rajendra Singh son of Ram Swaroop Singh 5. Anil Choudhury son of Baidya Nath Choudhary, all are resident of Housing Colony, Chhota Govindpur, P.S. Govindpur, District East Singhbhum … ... Opposite Parties --- For the Petitioner : Mr. Navneet Sahay, Advocate For the O. P. No. 2 to 5 : M/s. Amrita Sinha, Advocate --- Present: HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY ---- By Court: Heard Mr. Navneet Sahay, learned counsel appearing for the petitioner and M/s. Amrita Sinha, learned counsel appearing for the opposite party nos. 2 to 5. This application is directed against the order dated 22.02.2001 passed by the learned District & Sessions Judge, East Singhbhum, Jamshedpur in Criminal Revision No. 53 of 2000 whereby and whereunder the revision application preferred by the opposite party no. 2 to 5 against the order passed under Section 133 of the CrPC has been allowed. It has been stated by the learned counsel for the petitioner that admittedly there has been unlawful obstruction with the land in question which has caused hindrance and nuisance which resulted in initiating a proceeding under Section 133 of the CrPC. Learned counsel submits that the order passed by the learned District & Sessions Judge, East Singhbhum, Jamshedpur though in a veiled statement has admitted to the aforesaid fact but on the other hand has stated that there is no encroachment rather the road has become narrower. Learned counsel submits that in view of the findings of the learned -2- District & Sessions Judge, East Singhbhum, Jamshedpur which has not been properly appreciated the order passed by the Executive Magistrate, Jamshedpur the impugned order deserves to be quashed and set aside. M/s. Amrita Sinha, learned counsel appearing for the opposite party nos. 2 to 5, has stated that there has been no encroachment made by the opposite party nos. 2 to 5. It has been stated that without making efforts for regulating the trade and business carried on by the opposite party nos. 2 to 5 by giving them an alternative place to carry on such business the Executive Magistrate has straightway ordered for removal of nuisance which was rightly set aside by the learned District & Sessions Judge, East Singhbhum, Jamshedpur. It has also been submitted that there was no encroachment or obstruction on the part of the opposite party nos. 2 to 5 so as to commence a proceeding under Section 133 CrPC. It appears that on the proceeding initiated at the behest of the petitioner an order was passed by the Executive Magistrate, Jamshedpur in Misc. Case No. 102 of 1996 whereby the opposite party nos. 2 to 5 were directed to remove the Gumti on the encroached road at Chhota Govindpur, Housing Board Colony. The revision application preferred by the opposite party nos. 2 to 5 was allowed by holding that the basic ingredients necessary under Section 133 of the CrPC was lacking. It appears from the order passed by the learned District & Sessions Judge, East Singhbhum, Jamshedpur that he has come to the conclusion that although there is no obstruction on the road but the road itself has become narrower. He further goes on to hold that the opposite party nos. 2 to 5 do not have any right, title and interest over the land to erect gumties or shop for their livelihood on the public road of the board. The reasons which have been assigned by the learned District & Sessions Judge, East Singhbhum, Jamshedpur while setting aside the order passed by the Executive Magistrate runs contrary to each other. On the one hand, it is an admitted fact that there has been encroachment over the public land whereas on the other hand it has been stated that the road itself has become narrow without there being -3- any obstruction. The order passed by the Executive Magistrate dated 03.05.2000 has neither been properly considered nor proper appreciation has been made with respect to the oral and documentary evidence brought forward by the parties. Learned District & Sessions Judge, East Singhbhum, Jamshedpur was perhaps swayed by the fact that the persons who have constructed the Gumties were earning their livelihood since long and, therefore, he had come to the conclusion that the ingredients under Section 133 CrPC has not been fulfilled. If there is an unlawful obstruction or nuisance the same should be removed from any public place which forms the backbone of initiation of a proceeding under Section 133 CrPC. The order passed by the learned District & Sessions Judge, East Singhbhum, Jamshedpur does not disclose a clear cut findings as to whether there has been an obstruction or not rather he had merely concentrated on the fact that the road in dispute has become narrower on account of the Gumties having been set up by the opposite party nos. 2 to 5. In absence of proper appreciation with respect to the materials available on records the impugned order dated 22.02.2001 passed by the learned District & Sessions Judge, East Singhbhum, Jamshedpur in Criminal Revision No. 53 of 2000 being not sustainable in the eye of law is, hereby, set aside and the matter is remitted back to the learned District & Sessions Judge, East Singhbhum, Jamshedpur to pass a fresh order in accordance with law after taking into consideration the materials available on record. The aforesaid exercise should be completed within a period of three months from the date of receipt/production of a copy of this order. This application stands disposed of. (Rongon Mukhopadhyay, J.) Jharkhand High Court at Ranchi The 27th day of February,, 2017 Umesh/NAFR