Section 133 CrPC inapplicable to create passage on government playground absent proof of public way and hearing to owner; violates natural justice; civil suit appropriate remedy for passage rights.

JUDGMENT :

Sandeep Sharma, J.

Instant Criminal Revision Petition, lays challenge to the order dated 6.3.2025, passed by the learned Sessions Judge, Mandi Division Mandi, Himachal Pradesh, in Criminal Revision No. 40 of 2024, titled as State of Himachal Pradesh and Anr. v. Ram Lal and Ors., reversing order dated 22.10.2022, passed by the Sub Divisional Magistrate Thunag, District Mandi, Himachal Pradesh, in file No. 25 of 2022 titled as Ram Lal and Ors. v. Principal Government Senior Secondary School Janjehli and Anr.

2. Precisely, the facts of the case as emerge from the pleadings as well as documents adduced on record by the respective parties are that petitioners and proforma respondent No.3 herein filed an application under Section 133 of CrPC in the court of Sub Divisional Magistrate, Thunag, praying therein for restoration of public path allegedly blocked by the respondents. It is averred in the application that houses of the applicants are situated on Khasra No. 687, which is adjacent to playground of GMSSS Janjehli and passage to the same passes through the school playground. Applicants alleged that school management has now blocked the path by constructing the boundary wall. Though during construction of the boundary wall, school management had given the path through gate, but same has also been closed.

3. Taking note of the aforesaid application made by the applicants, Sub Divisional Magistrate called for spot report from the field agency, which specifically apprised the court that there is a playground of GMSSS Janjeshli, District Mandi, Himachal Pradesh adjacent to the houses of the applicants situated on khasra No. 687. Sub Divisional Magistrate, taking note of the afore report submitted by the field agency as well as statements of witnesses adduced on record by the applicants, proceeded to pass conditional order under Section 133 CrPC, dated 22.10.2022 (Annexure P-1), thereby ordering that 2ft. space will be created in boundary wall in front of common wall between the houses of applicants No. 1 and 3 and such space will be created by partly demolishing boundary wall and erecting iron gate in that space and the expenditure thereof shall be borne by the applicants. Sub Divisional Magistrate further ordered that applicants will give way through their land to the adjoining plots in the ownership of Sh. Tej Singh, Smt. Mangli, Sh. Dola Ram and Sh.Mohan Singh and in case, they refuse to give way through their land to the plots of the persons mentioned above, instant order shall cease to operate.

4. Being aggrieved and dissatisfied with order passed by the Sub Divisional Magistrate under Section 133 of CrPC, respondents No. 1 & 2 filed Criminal Revision Petition under Section 397 of the CrPC in the court of learned Sessions Judge, Mandi, District Mandi, Himachal Pradesh, who vide order dated 6.3.2025, allowed the same and set-aside order dated 22.10.2022, passed by the Sub Divisional Magistrate, Thunag, District Mandi, Himachal Pradesh. In the afore background, petitioners have approached this Court in the instant proceedings, praying therein to quash and set-aside the aforesaid order and restore the order dated 22.10.2022 passed by the Sub Divisional Magistrate under of CrPC.

5. Precisely, the grouse of the petitioners as has been highlighted in the petition and further canvassed by Mr. Prajwal Sharma, learned counsel appearing for the petitioners is that learned Sessions Judge while passing impugned order failed to take note of the fact that houses of the applicants are situate on the land adjacent to the playground. Mr. Sharma, further submitted t