IMPORTANT POINT
The main legal point established in the judgment is the requirement for reliable evidence in support of denial of public right and the burden of rebutting factual recitals.

JUDGMENT :

1. Heard learned counsel for the applicant, learned AGA for the State of U.P. and perused the record.

2. By means of the instant application under Section 482 Cr.P.C., the applicants have assailed the order dated 07.05.2022 passed by Sub-Divisional Magistrate, Dalmau, Raebareli (hereinafter referred to as "Magistrate") in exercise of power under Section 138 of Cr.P.C. in Case No. 745 of 2022, Computerized Case No. T202210580500745, under Section 133 of Cr.P.C. as also the order dated 05.09.2023 passed by Additional District and Sessions Judge, IV, Raebareli (hereinafter referred to as "revisional court") in Criminal Revision No. 129 of 2022 (Prem Narayan Tiwari another vs. Dharmendra Kumar Shukla & another).

3. Brief facts of the case are to the effect that an application under Section 133 Cr.P.C. was preferred by one Dharmendra Kumar Shukla, which was registered as Case No. 745 of 2022, in which, the Magistrate concerned issued notice to the opposite parties and in response to the same, applicants herein namely Prem Narayan Tiwari and Manoj Kumar Tiwari put in appearance and filed their response on 28.04.2022. The response filed by the applicants are as under:-

4. From the above quoted portion of the response dated 28.04.2022 filed by the applicants, it is apparent that admittedly the disputed pertains to 'public way' and that the applicants prayed for spot inspection by the concerned Magistrate.

5. From the undisputed orders particularly the orders passed by the Magistrate concerned on 28.04.2022 and 30.04.2022, it appears that Magistrate concerned visited the spot, however, from the record, it appears that the spot memo/inspection report was not prepared on 30.04.2022.

6. It also appears from the record that a report dated 02.05.2022 was submitted by the Lekhpal concerned and the case was fixed for the arguments on 02.05.2022 and thereafter again on 04.05.2022 and thereafter the matter was heard on 05.05.2022 and final order was pronounced on 07.05.2022, impugned herein. The relevant portion of the impugned order dated 07.05.2022 reads as under:-

7. A perusal of impugned order dated 07.05.2022 indicates that the same is based upon the report of Lekhpal dated 02.05.2022 as also the actual position/aspect of the place in dispute observed by the Magistrate concerned himself while making inspection and the Magistrate after taking note of the same observed that the applicants have obstructed the 'public way' and thereafter, passed the order dated 07.05.2022 directing the applicants to remove the obstructions.

8. The fact that the Magistrate concerned visited the spot has not been refuted by the applicants.

9. Being aggrieved by the order dated 07.05.2022, the applicants preferred the Criminal Revision No. 129 of 2022. A perusal of memo of revision indicates that the order dated 07.05.2022 was assailed before the District and Sessions Judge, Raebareli on the following grounds:-

"(a) That the impugned order dated 07-05-2022 passed by the learned lower court being against the law and facts and not sustainable in the eye of law and liable to be quashed.

(b) That after passing the conditional order dated 08-04-2022 under section 133(1) Cr.P.C. the learned lower court not adopted the proceeding under section 138 Cr.P.C. and passed the impugned order without adopting the procedure under section 138 Cr.P.C. hence the impugned order is bad in law.

(c) That after passing the conditional order and after filing the objection by the revisionists neither the date for taking evidence under section 138 Cr.P.C. was fixed before the learned lower court nor any opportunity of evidence was given by the learned lower court to the parties concerned, violating the procedure laid down under section 138 Cr.P.C. in arbitrary manner. Hence the impugned order dated 07-05-2022 is not sustainable in the eye of law and liable to be quashed.

(d) That needless to say here that under section 133(1) Cr.P.C., after passing the conditional order section 133(1) Cr.P.C