Pradip Mohanty, J.
1. In the instant revision, the petitioner is aggrieved by the judgment dated 26.05.1998 passed by the learned 2nd Addl. Sessions Judge, Bhubaneswar in Criminal Revision No. 28/30 of 1997/94 reversing the order dated 25.03.1994 of the Sub-Divisional Magistrate, Bhubaneswar in Crl. Misc. Case No. 217 of 1993.
2. The petitioner is the 1st party in the trial Court and opposite party No. 2 before the learned 2nd Addl. Sessions Judge, Bhubaneswar (lower revisional Court). The case of the petitioner is that her residential house is situated over plot No. 1120 corresponding to Sabik Plot No. 87 and the private opposite parties are the owners of Hal Plot Nos. 1122 and 1123 corresponding to Sabik Plot No. 88. To the South of the above plots, a public passage runs bearing Plot No. 1126, which is used by the family of the petitioner and others. The private opposite parties have occupied a major portion of the said passage by constructing a shed, thereby obstructing free passage/Therefore, the petitioner filed an application under Section 133 Cr.P.C. before the learned S.D.M., Bhubaneswar which was registered as Crl. Misc. Case No. 217 of 1993. The local police, on being 3irected by the learned S.D.M., submitted a report to the effect that there is a foot path of 21/2 wicth between the land of the members of the 2nd party and Vivekananda Sikhya Kendra. The demarcation report submitted by the Amin in Demarcation Case No. 38 of 1988 shows that there was a public road in the Southern side of the house of both the parties and the private opposite parties have encroached upon the said road by constructing a shed. The private opposite parties on receipt of notice appeared and filed their chow-cause, inter alia, stating that there is no existence of public road and the petitioner is an encroacher. Learned S.D.M. after hearing the parties came to a conclusion that there exists a public road on the southern side of the lands of the parties. The road has been encroached upon by Dharani Nayak and Upendra Nayak, husbands of opposite parties 1 and 2 respectively. He came to a further finding that the public road, i.e., Plot No. 1126, has been used by a number of persons surrounding the area and directed the Municipal Authority of Bhubaneswar Town along with the staff of the B.D.A. to clear the obstructions by the private opposite parties. Against that order, the private opposite parties preferred Crl. Revision No. 28/30 of 1997/94 and the learned Addl. Sessions Judge, Bhubaneswar after hearing the parties set aside the order of the S.D.M. dated 25.03.2004 with a finding that not a single public of that area came to speak that such obstruction has caused public nuisance and also observed that there was nothing in the report of the S.I. of Police, Kharavelanagar regarding the public nuisance.
3. Learned Counsel for the petitioner submitted that after receiving the report from the local police, the S.D.M. came to a conclusion that there was a foot path of 21/2 width in between the lands of the second party members and Vivekananda Sikhya Kendra which was being used by the 1st party (present petitioner). He also observed that the public road could not be allowed to lose its identity on personal dispute and the said plot should be restored for public purpose. Learned Counsel further submitted that no illegality was committed by the S.D.M. in passing an order under Section 133 Cr.P.C. Learned Counsel for the private opposite parties, on the other hand, contended that the lower revisional Court has rightly set aside the order of the S.D.M. Not a single witness from the side of the general public has been examined to prove that the road is a public road. The police report also does not reveal that there is existence of public nuisance. This is purely a personal dispute between the petitioner and the private opposite parties for which T.S. No. 209 of 1994 and T.S. No. 96 of 2006 are pending before the Civil Judge (Senior Division), Bhubaneswar and there is no question of imminent danger since the constructions are concrete structures on the disputed land. The S.D.M. directed for demolition of a portion of the structure. Therefore, the lower revisional Court has rightly passed an order setting aside the order of the S.D.M. There is no illegality in the order of the lower revisional Court. No enquiry, as contemplated under Sections 137 and 138 Cr.P.C. was conducted by the trial Court.
4. Perused the order of the S.D.M. and the judgment of the lower revisional Court. The revisional Court without assigning any reason reversed the finding of the trial Court. The revisional Court passed the order observing that not a single public has been examined to prove that the construction in question has caused public nuisance. When the provision is clear that he is to look into the public nuisance caused by the private opposite parties, the learned revisional Court should have given a finding to that effect. Moreover, it has not applied its mind and has not examined whether the provisions of Section 137 and 138 Cr.P.C. have been complied with or not.
5. In view of the above, this Court allows the revision, Sets aside the order of the lower revisional Court and remits the matter back to it for fresh disposal by passing a reasoned order after giving opportunity of hearing to both parties.