Proceedings under Section 133 Cr.PC require evidence of public nuisance; private disputes cannot be adjudicated under this provision.

JUDGMENT :

Jitendra Kumar, J.

The present petition under Section 482 Cr.PC has been preferred by the Petitioners against the impugned notice and conditional order dated 28.05.2016 issued to the Petitioners in Case bearing No.216/M/2016, pending before Ld. Sub-Divisional Magistrate, Danapur, Patna, whereby proceeding under Section 133 Cr.PC has been initiated and the Petitioners have been directed to remove the obstruction/encroachment from the land in question or in the alternative, they are required to file show cause by themselves or through their counsel as to why the conditional order should not be made absolute.

2. The proceeding under Section 133 of Cr.PC has been initiated against the Petitioners on report of the officer-in-charge of Khagaul Police Station. The police have submitted the report in view of the complaint of O.P. No. 5, Narayan Pandit. As per the police report, the land in question bearing holding no. 234, Ward No. 16, Circle No.10, is situated in mohalla Bada Khagaul, Millat Colony belonging to the Petitioners. The tenant of the Petitioners is running a khatal over the land and in the middle of the land, there is accumulation of animal dung and at the western part of the land, there is storage of bricks. The land of the Complainant is situated to the north of the land of the Petitioners having old house built up over it. However, nobody is inhabitating in the house. The Complainaint/O.P. No. 5 demands a pathway over the land of the Petitioners to access the metalled road. However, the Petitioners claim that they have already given pathway from the backside of their land. However, the police have found that the land of the Petitioners is vacant on the eastern side which may be used by the Complainant for ingress and egress to the road, but the Petitioners are not agreeable to allow the Complainant to use their land as pathway to the metalled road. A litigation is pending between the parties in regard to this dispute between them. Hence, the police was of the view that in view of the dispute between the parties and law and order, initiatiion of proceeding under Section 133 Cr.PC was required.

3. Being satisfied with the report of the police, learned Executive Magistrate has initiated the proceeding under Section 133 Cr.PC and passed the conditional order to the Petitioners.

4. Being aggrieved by the impugned notice and the conditional order, the Petitioners have preferred the present petition.

5. I heard learned counsel for the Petitioners, learned APP for the State and learned counsel for O.P. No. 5, on whose complaint, the proceeding under Section 133 Cr.PC has been initiated.

6. Learned counsel for the Petitioners submits that initiation of proceeding under Section 133 Cr.PC and passing of conditional order by the learned S.D.M. are not sustainable in the eye of law. For invoking jurisdiction under Section 133 Cr.PC, there must be existence of public nuisance or obstruction in violation of public right. But in the case on hand, even as per the police report, there is no such public nuisance or violation of any public right by creating obstruction or encroachment on public land. There is no report of the police that there was public nuisance being created on account of accumulation of animal dung or storage of bricks on the land by the Petitioners. Even the Complainant, who is O.P. No. 5, has not made complaint regarding any nuisance being created on account of running of khatal and accumulation of animal dung, much less there was any complaint of the public at large. Even the police report discloses that there is dispute between the Complainant and the Petitioners in regard to pathway to approach the metalled road by the Complainant. The land of the Petitioners is situated adjacent to the metalled road to the north and the land of the Complainant/O.P. No. 5 is situated adjacent to the land of the Petitioners to the north. And hence, the Complainaint wants the approach pathway from their land to the metalled road