Pendency of a civil suit does not automatically stay proceedings under Section 133 Cr. P. C. The Magistrate has the authority to inquire into the matter and make a decision based on the evidence presented.

( 1 ) INSTANT application u/s. 482 cr. P. C. has been moved by Budhwa and four others residents of Mohalla Shivpuri, qasba Rampur, police station Rampur, district Saharanpur, against State of U. P. and opposite parties 2 to 9, who are private parties and are residents of the same Mohalla shivpuri, for quashing the order dated 22-8-2005 passed by Upper Up Zila Magistrate in Criminal Case No. 7/2003-04, State v. Budhwa and others and order dated 21-9-2005 passed by learned Sessions Judge, saharanpur in Criminal Revision No. 42 of 2005, Budhwa and others v. State of U. P. whereby a direction was made under Section 133 of Cr. P. C. directing the applicants to remove construction causing obstruction in public path situate in the aforesaid mohalla Shivpuri.

( 2 ) HEARD Sri Ashfaq Ahmad Ansari, learned counsel for the applicants, learned aga and have gone through the record.

( 3 ) THE facts of the case is that Dheer singh and seven others of the Mohalla shivpuri moved application in the Court of sub Divisional Magistrate, Deoband, saharanpur, on 15-7-2002 that they are residents of Mohalla Shivpuri. The opposite parties Budhwa and others are also residents of the same place. There is a public path of one meter in breadth to their house from outside. Budhwa and others illegally raised construction on a part of the public path land. It was being removed by the complainants on 14-7-2002 but the applicants-accused caused injuries with iron rods, lathis, ballam and knife and threatening was also extended by the applicants. On this a case under Section 133 Cr. P. C. was registered and report was called for from the police station concerned. On 29-7-2002 the learned Magistrate passed order to issue conditional order under Section 133 (1) Cr. P. C. Consequently notice was sent to the applicants, who filed their objection alleging that there was agreement deed in their favour, which related to 7-4-1986. The disputed land is part of Khasra No. 643, they are licencee of it and they have raised wall on their land and not on the public path.

( 4 ) THE learned Magistrate perused the papers of the parties and arrived at the conclusion that the complainants had denied that the applicants had right in respect of the land in dispute. The applicants examined Ramesh Kumar and Leeladhar as DW 1 and DW 2. The applicants also filed copy of the order dated 25-4-2003 passed by the civil Judge (Junior Division), Deoband, rampur, in Suit No. 303 of 2002, Budhwa v. Sukhram. The learned Sub Divisional magistrate observed that the path was blocked by the applicants by raising construction. It was being used as public path by the persons of the village and this is the only path through which the villagers go to their residences and in case it was not removed there was continuous nuisance. The learned Magistrate also arrived at the con-clusion that since it was a public path, therefore, the applicants had to remove their constructions within a week.

( 5 ) REVISION was preferred by the applicants against the order dated 24-2-2005 before the learned Sessions Judge and it was pressed by the applicants that Civil suit was pending between the parties, therefore, the case under Section 133 Cr. P. C. was not maintainable. The learned Sessions Judge perused the agreement filed by the applicants. In the opinion of the learned Sessions judge it was an unregistered agreement in respect of an immoveable property, so it was a void agreement. There was no registered sale deed in favour of the applicants, therefore, it was found that the applicants had no genuine claim about the path and the civil suit was not bar for initiating proceeding under Section 133 Cr. P. C. It was also observed that the civil suit was filed just few days before the order was passed under section 133 Cr. P. C. and therefore the revision was dismissed.

( 6 ) AGGRIEVED therefrom the applicants filed Criminal Misc. Writ Petition No. 4197 of 2005, Budhwa v. State of U. P. A copy of the judgment is at Annexur