Sub-Divisional Magistrate lacks jurisdiction to remove encroachments from private land under Section 133 of the Code of Criminal Procedure, as this section applies only to public places.

JUDGMENT :

ANIL KUMAR CHOUDHARY, J.

By the Court:- Heard the parties.

2. Though the opposite party No.2 has put his appearance through advocate yet no one turns up on behalf of the opposite party No.2 in spite of repeated calls.

3. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with a prayer to quash the order dated 20.01.2020 passed in Criminal Revision No.27 of 2018 by the Additional Sessions Judge-IV, Deoghar whereby and where under the Additional Sessions Judge-IV, Deoghar has set aside the order dated 19.08.2017 passed by the Sub- Divisional Magistrate, Deoghar in Criminal Misc. Case No.494 of 2017 by which the Sub-Divisional Magistrate, Deoghar directed to remove the encroachment from the disputed land even though no public place or any way, river or channel which is or may be lawfully used by the public was involved.

4. The brief fact of the case is that the petitioner who was the first party before the Sub-Divisional Magistrate, Deoghar filed a petition; basing upon which Criminal Misc. Case No.494 of 2017 was registered and the Sub- Divisional Magistrate, Deoghar vide order dated 19.08.2017 in the said case, directed removal of encroachment over the disputed land. The same was challenged before the learned Additional Sessions Judge-IV, Deoghar vide Criminal Revision No.27 of 2018. It is apparent that when the same was transferred to the learned Additional Sessions Judge-IV, Deoghar, the learned Additional Sessions Judge-IV, Deoghar considered that no public place or any way, river or channel which is or may be lawfully used by the public is involved in the dispute rather the dispute is a private dispute between two parties and held that the order of removal of the alleged encroachment from the disputed land is without the jurisdiction of the Sub-Divisional Magistrate, Deoghar and set aside the same.

5. Learned counsel for the petitioner submits that the Sub-Divisional Magistrate, Deoghar has rightly ordered to remove the wall which creates nuisance. It is next submitted that the learned Additional Sessions Judge-IV, Deoghar has committed a grave illegality by setting aside the said order. Hence, it is submitted that the prayer as prayed for in this Criminal Miscellaneous Petition be allowed.

6. Learned Special Public Prosecutor appearing for the State on the other hand vehemently opposes the prayer of the petitioner made in this Criminal Miscellaneous Petition and submits that the only provision under which a District Magistrate or a Sub-Divisional Magistrate or any Executive Magistrate specially empowered by the State Government can order removal of obstructions or nuisance is under Section 133 of the Code of Criminal Procedure but that too only if the place concerned is a public place or any way, river or channel which is or may be lawfully used by the public. It is next submitted that the dispute between the parties is a private dispute in respect of a private land; hence, certainly, the Sub-Divisional Magistrate, Deoghar has exceeded its jurisdiction by passing the order of removal apparently in exercise of the power under Section 133 of the Code of Criminal Procedure. Therefore, no illegality has been committed by the learned Additional Sessions Judge-IV, Deoghar. Hence, it is submitted that this Criminal Miscellaneous Petition, being without any merit, be dismissed.

7. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that it is apparent that the order impugned before the learned Additional Sessions Judge-IV, Deoghar in Criminal Revision No.