IMPORTANT POINT
Jurisdiction under Section 133 of the CrPC applies only to public paths; absence of a conditional order invalidates proceedings.

JUDGMENT :

Rakesh Kainthla, J.

The petitioners have filed the present petition against the judgment dated 18.11.2023, passed by the learned Additional Sessions Judge, Sundernagar, District Mandi, H.P. (learned Revisional Court), vide which the order dated 19.11.2016, passed by the learned Sub Divisional Magistrate, Sundernagar, District Mandi, H.P. (learned Trial Court) was set aside. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.)

2. Briefly stated, the facts giving rise to the present petition are that the complainants filed a complaint before the learned Sub Divisional Magistrate, Sundernagar, District Mandi, H.P., asserting that a road was constructed under MGNREGA. The respondents erected barbed wire and obstructed the road. The complainants requested the respondents to remove the obstruction, but in vain. Hence, the complaint was filed before the Court.

3. Learned Sub Divisional Magistrate sent the complaint to the Station House Officer (SHO) for investigation, who submitted a report that the respondents had erected a barbed wire and did not remove it despite persuasion of the panchayat officials. Hence, the case under Section 133 of CrPC was made out.

4. The learned Trial Court passed an order for the issuance of the notice to the respondents. The respondents appeared and filed a reply, taking preliminary objections regarding lack of jurisdiction, the notice being bad, and the complaint having been filed without any basis. The contents of the complaint were denied on merits. It was asserted that the path belongs to the respondents and is in their use and occupation. The house of the complainants is located adjacent to the Dhanotu-Karsog Road, and they used the same road to reach their house. The respondents used their path to visit their house. They fenced their land. The road was constructed in Khasra Nos. 291 and 521. Khasra No. 486, which belongs to the complainant, is located adjacent to Khasra No. 521. Khasra No. 485/1, owned by the respondents, is located adjacent to Khasra No. 291. The other inhabitants had no right to use the passage. Therefore, it was prayed that the complaint be dismissed.

5. A rejoinder denying the contents of the reply and affirming those of the application was filed.

6. The parties were called upon to produce the evidence. The complainants examined Sanjana Kumari (PW1), Bhuwaneshwar (PW2), Ram Krishan (PW3), Naresh Kumar (PW4), HC Pawan Kumar (PW5), Hira Lal Thakur (PW6), and Chander Prakash Singh (PW7). Respondents examined Dayawanti (RW1), Dila Ram (RW2), Chuha Ram (RW3) and Dharmender Kumar (RW4).

7. Learned Trial Court also called for the report of the Tehsildar.

8. Learned Trial Court held that the passage was constructed under MGNREGA. Affidavits were executed by the respondents. The path in Khasra No. 485/1 was recorded as the Gair Mumkin path, which was made pucca by the Gram Panchayat. Hence, the same falls within the definition of a public path. Respondents blocked the path without any right to do so. Therefore, the learned Trial Court directed the respondents to remove the obstruction.

9. Being aggrieved by the order passed by the learned Trial Court, the respondents filed a revision which was decided by the learned Additional Sessions Judge, Sundernagar (learned Revisional Court). Learned Revisional Court held that the jurisdiction under Section 133 can be invoked in respect of a public path. The complainants/applicants belonged to one family. None of the villagers or members of the general public was involved in the dispute. The land was owned and possessed by the respondents. The complainants had no right to use the land of the respondents as a public path. The learned Trial Court erred in ordering the respondents to remove the obstruction. Consequently, the order passed by the learned Trial Court was set aside.

10. Being aggrieved by the order passed by the learned Revisional Court, the complainants have