SHORT NOTE
GAUHATI HIGH COURT
Rumi Kumari Phukan, J.
Raja Chamuah —Petitioner
versus
State of Assam and Ors. —Respondents
Crl. Petition No.453 of 2016
Decided on 21.3.2018

IMPORTANT POINT
A proceeding under section 133 Cr.P.C. can be drawn only when there is an unlawful obstruction on the way and it is not necessary that the disputed road/land must belong to the Government or to Public.

Headnote:Criminal Procedure Code, 1973—Section 133—Unlawful obstruction or nuisance on the way—Dispute arose between parties regarding closure of road by second party—After recording evidence from both sides SDM came to finding that disputed land was a private land as per land record and Section 133 Cr.P.C. was not applicable—Revision against order was dismissed by Sessions Court—Revision—Evidence showed that road in question was constructed by 1st party to go to their paddy fields and road was also used by 1st party and four other families of locality—Second party sacrified some land and constructed an alternative road and closed the road in question—No evidence of access to land by persons at large of locality by a right—Obstruction if any could not be said to be an unlawful one—No interference warranted.

       Held: Accordingly, a proceeding under section 133 Cr.P.C. can be drawn only when there is an unlawful obstruction on the way and it is not necessary that the disputed road/land must belong to the Government or to Public. In such a proceeding it is required to establish that the public of the locality has the right to access to that of the private road and that the obstruction was unlawful. If the obstruction was not unlawful, the provision of section 133 Cr.P.C. is not attracted. In the present case from the evidence it appears that the path in question was constructed by the opposite party on their land for their convenience to go to the paddy field. The 1st party and other four family of the locality also used that same to go to their house and not by the public at large. But as the new road is constructed, the opposite party closed the road which was constructed by them over their land as required for their use. From the evidence it also appears that the opposite parties have sacrificed their land for the new road. There appeared no evidence of access to the land by the persons at large at the locality by a right, admission uses or otherwise. Admittedly the land is shown as a private land in the Govt. record like Chitha and Jammabandi. In view of the matter this court is considered view that obstruction if any cannot be said to be an unlawful one and as such provision of section 133 CrPC have no application on the land in question. The learned trial court as well as the revisonal court has rightly decide the matter that only the provision of section 107 CrPC is applicable in the facts situation.

       Result: Revision dismissed.