The Magistrate must follow the mandatory procedure under Section 133 of the Code of Criminal Procedure, which requires the Magistrate to first question the person against whom the order is made whether he denies the existence of public right in the pathway.

Headnote:
CRIMINAL PROCEDURE CODE - SECTION 133 - PUBLIC NUISANCE - PROCEDURE - MAGISTRATE'S DUTY TO QUESTION DENIAL OF PUBLIC RIGHT - RELIANCE ON REPORT IN ANOTHER PROCEEDING - CIVIL SUIT PENDING - SUBSTITUTION OF CIVIL REMEDY - LEGALITY OF MAGISTRATE'S ORDER.
Fact of the Case:

The petitioner, Monoharlal Dutt, filed a revisional application under Section 482 of the Code of Criminal Procedure, seeking to quash the proceeding in M. P. Case No. 774 of 2002 pending before the Executive Magistrate, Howrah (Sadar) under Section 133 of the Code of Criminal Procedure. The petitioner claimed that the Magistrate had passed an illegal order directing him to remove an iron gate and wall on his land, which was constructed to prevent outsiders from using the private road meant for the exclusive use of the petitioner and his purchasers.
Finding of the Court:

The court held that the Magistrate had acted illegally and without jurisdiction in passing the impugned order. The court found that the Magistrate had failed to follow the mandatory procedure under Section 133 of the Code of Criminal Procedure, which requires the Magistrate to first question the person against whom the order is made whether he denies the existence of public right in the pathway. The court also found that the Magistrate had relied on a report of the B. D. O. Sankrail, obtained in connection with another case, without waiting for the report called for by him from the O. C. Sankrail P. S.
Issues: 1. Whether the Magistrate had followed the mandatory procedure under Section 133 of the Code of Criminal Procedure? 2. Whether the Magistrate was justified in relying on a report of the B. D. O. Sankrail, obtained in connection with another case, without waiting for the report called for by him from the O. C. Sankrail P. S.? 3. Whether the Magistrate could pass a conditional order for the removal of the alleged public nuisance when a civil suit was pending between the parties?
Ratio Decidendi: The court held that the Magistrate had failed to follow the mandatory procedure under Section 133 of the Code of Criminal Procedure, which requires the Magistrate to first question the person against whom the order is made whether he denies the existence of public right in the pathway. The court also held that the Magistrate was not justified in relying on a report of the B. D. O. Sankrail, obtained in connection with another case, without waiting for the report called for by him from the O. C. Sankrail P. S. The court further held that the Magistrate could not pass a conditional order for the removal of the alleged public nuisance when a civil suit was pending between the parties.
Final Decision: The court allowed the revisional application and set aside the impugned order dated 18-4-2002 passed by the Ld. Executive Magistrate (Sadar). The court directed the Magistrate to proceed in the matter afresh against the petitioner in accordance with law and after complying with the mandatory requirement of law, as discussed above and after giving an opportunity to the parties of being heard.

P. K. BISWAS, J.

( 1 ) THIS is an application under Section 482 of the Code of Criminal Procedure filed at the instance of Monoharlal Dutt, petitioner herein, seeking to quash the proceeding in M. P. Case No. 774 of 2002 pending before the Ld. Executive Magistrate, Howrah (Sadar) under Section 133 of the Code of Criminal Procedure.

( 2 ) THE short facts leading to the filing of this revisional application are as follows :the petitioner herein had purchased the plot No. 1130 and other 14 plots of lands mentioned in paragraph 1 of his application of Mouza - Sulati. P. S. Sankrail, Howrah by virtue of various valid deeds of conveyance.

( 3 ) IT has further been alleged that the wife of this petitioner Smt. Krishna Dutt is the absolute owner of Plot Nos. 529. 1203 and 1225 of Mouza Sandipur, P. S. Sankrail, Howrah by virtue of her purchase by diversed deeds.

( 4 ) IT has further been alleged that after their purchase, the petitioner developed the said plot of land and those have been divided into different plots for the purpose of conveyance to the prospective buyers as the marketable plots and in course of development of those plots, the petitioner built a private road in those plots for the purpose of exclusive use of the petitioner and other prospective buyers, who may purchase plots from the petitioner in respect of the aforesaid plots.

( 5 ) HAS further been alleged by the petitioner that the said road was never used as public road or public path-way for outsiders and this was meant for exclusive use of the petitioner and other purchasers purchasing plots of land from the petitioner in respect of the aforesaid lands.

( 6 ) ON or about 2000, one M/s. Lagas Overseas Pvt. Ltd. a private limited company purchased a plot of land in the neighbouring petitioner's land from different persons and M/s. Lagas Overseas Pvt. Ltd. however, did not purchase any land from the petitioner or any plot from the petitioner's land as such they had no right to use the private road which is meant for the exclusive user of the petitioner and/or his purchasers.

( 7 ) WITH ulterior motive, the aforesaid Lagas Overseas Pvt. Ltd. has filed a civil suit being Title Suit No. 128 of 2001 against the petitioner before the Court of Ld. Civil Judge, 5th Court, Junior Division, Howrah praying for a decree for permanent injunction and with other reliefs and the aforesaid Lagas Overseas Pvt. Ltd. , took out an interlocutory application, inter alia, praying for an injunction restraining the petitioner from obstructing their right of using passage over the petitioner's land.

( 8 ) THE Ld. Civil Judge, 5th Court Junior Division, Howrah by an order dated 12-6-2001 declined to grant and ad interim order of injunction to the said M/s. Lagas Overseas Pvt. Ltd. and issued notice upon the petitioner to file show cause in the aforesaid injunction application and the next date for hearing was on 18-6-2002 and the present petitioner duly appeared in the said suit and had contested the same.

( 9 ) NOW, having failed to obtain an ad interim order in its favour in the civil proceeding, the opposite party No. 2 has taken out an application under Section 133 of the Code of Civil Procedure against the petitioner claiming, inter alia, for an order for removal of iron gate and wall fixed and erected over alleged passage.

( 10 ) IT has further been alleged by the petitioner that from the inception of the private road, there was an iron gate and a wall constructed in order to prevent the entry of outsiders other than the petitioner and or purchaser of various plots from the petitioner.

( 11 ) THE Ld. Executive Magistrate by an order dated 26-3-2002 called upon Officer-in-Charge, Sankrail Police Station to submit a report in the said proceeding and directed that the petitioner to appear before the said Court and to submit explanation as to alleged encroachment of the suit land.

( 12 ) ON the next date of hearing i. e. on 9-4-2002, a report the B. D. O. Sankrail, Howrah was f

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2002 Supreme(Cal) 259

High Court Of CalcuttaP. K. BISWASMONOHARLAL DUTT - AppellantVersusSTATE OF WEST BENGAL - RespondentC. R. P. 989 Of 2002Decided On : 04/20/2002

The Magistrate must follow the mandatory procedure under Section 133 of the Code of Criminal Procedure, which requires the Magistrate to first question the person against whom the order is made whether he denies the existence of public right in the pathway.

High Court Of Calcutta
P. K. BISWAS
MONOHARLAL DUTT - Appellant
Versus
STATE OF WEST BENGAL - Respondent
C. R. P. 989 Of 2002
Decided On : 04/20/2002