JUDGMENT :

1. Heard Mr. K. Bhattacharjee, learned counsel appearing on behalf of the petitioner as well as Mr. B.B. Gogoi, learned Addl. P.P. appearing for the State respondent no. 1. Also heard Mr. K.R. Patgiri, learned counsel appearing for the respondent nos. 3 to 7.

2. The petitioner Sri Birendra Nath Das has filed this application under Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C for short) read with Article 227 of the Constitution of India with prayer for quashing the proceeding of C.R. case No. 806/2016, under Section 133 Cr.P.C and the order of remand for further enquiry passed by the learned Additional Sessions Judge Bajali dated 30.06.2017.

3. The respondents filed a petition under Section 133 Cr.P.C in the Court of the Sub-Divisional Magistrate, Bajali and the petitioner was arrayed as a second party in the proceeding.

4. The genesis of the case was that there was a public path from 152 National Highway to the paddy field through which the respondent and the public used to take their cattle to the paddy field. The petitioner was the owner of the scheduled land and subsequently, he sold the land to Mr. Mahendra Nath Sarma but the public path leading to the paddy field was not sold out. The public road was over the land belonging to Jagadish Kalita and the present petitioner, Birendra Nath Das had no right, title and possession over the said public path. It is alleged that the petitioner, despite having no right, title and interest over the public path, to encroach the land forcefully, erected the bamboo fence over the path.

5. The villagers then approached the SDO on 18th April, 2016 and the Revenue staff of the SDC office demarcated the land on 22.04.2016 and thereafter, the present petitioner removed the bamboo fence and constructed a pakka (concrete) wall. This impelled the respondents to file an application for dawning up a proceeding under Section 133 Cr.P.C. and they have prayed for investigation about the matter through the concerned police station and they have also prayed for removal of the obstruction.

6. During the inquiry, the learned SDJM, Bajali issued show-cause notice to the petitioner and vide order dated 20.12.2016, the learned SDJM passed an interim order to remove the obstruction. A notice was issued to the petitioner to show-cause as to why the interim order should not be made absolute against him under Section 133 Cr.P.C. The case was next fixed on 09.01.2017 and thereafter on 15.02.2017 a written statement was submitted and the case was fixed for orders on 20.02.2017. The order is reproduced herein below:-

“Date

20.02.2017

ORDER

Considering all documents submitted to this Court and arguments made by both parties with open mind and on their merit I am satisfied that removal of encroachment on the pathway used by public by Shri Birendra Nath Das is urgently necessary lest it will adversely effect the lives of people using it. Hence, I hereby make Order No. 2 dated 20.12.2016 absolute against Shri Birendra Nath Das.

However, since an injunction was passed by Munsiff Court, Bajali that Bars Shri Birendra Nath to enter the suit land till the disposal of the case.

I hereby direct C.O. Bajali with O.C. Patacharkuchi in carrying out the order within 4 days from the issue of the same i.e. 24.02.2017. Also since, it has been stated by 2nd party that the boundary wall was built by him. Shri Birendra Nath Das will bear the costs.

Also if 2nd party obstructs compliance of the order he will be liable for prosecution u/s 188 IPC. Let the copy of this order be served upon both the parties free of cost. C.O. to report compliance by 25.02.2017.”

7. A Title suit was parallelly proceeding in connection with the disputed land being T.S. 9/2015 in the Court of Munsiff Bajali. Sri Mahendra Nath Sarma had filed the Title Suit wherein, it has been alleged that the present petitioner had sold him a plot of land appertaining to Dag No. 333/3 covered by K.P. Patta no. 286 admeasuring 1 Bigha, 2 Katha and 10 Lechas. The