IMPORTANT POINT
Failure to adduce evidence under Section 133 Cr.PC, necessity of recording evidence, and setting aside impugned order

JUDGMENT

1. Heard Mr. A.S. Siddiqui, learned Sr. Counsel along with Ms. M.K. Sah, learned counsel for the petitioner. Also heard Mr. S. Dey, learned counsel for the respondent.

2. According to the parties, the dispute in this case is with regard to an alleged easementary right over the land of the respondent herein, to which the petitioner claimed that, within the said land of the respondent there used to be a path which was all along used by the petitioner as well as villagers to go towards Mahendraganj Bazar.

3. Suddenly, in the year 2015 the respondent had raised a temporary structure on the said land thereby obstructing the path which the petitioner and the villagers used to pass by. The petitioner had then accordingly filed an application under Section 133 Cr.PC before the Additional Deputy Commissioner, South West Garo Hills, Ampati. On the said application not being taken up expeditiously, the petitioner had approached this Court by way of a writ petition being WP(C) No. 35 of 2019 and this Court vide order dated 18.02.2019 had directed the said Additional Deputy Commissioner to dispose of the application within a period of two months in accordance with law.

4. The learned Additional Deputy Commissioner upon hearing the parties in the said application under Section 133 Cr.PC, had accordingly passed the impugned order dated 28.11.2019 holding that no case is made out under Section 133 and all further proceedings were dropped.

5. The petitioner being aggrieved by the said impugned order has approached this Court by way of this instant petition.

6. Mr. Siddiqui has submitted that since the learned Additional Deputy Commissioner has failed to adduce evidence before passing the impugned order, which is mandatory under the provisions of Section 133 Cr.PC. therefore, it is prayed that at this juncture this Court may remand this matter to the concerned Additional Deputy Commissioner with a direction to record the evidence of the parties and to pass necessary orders thereafter.

7. Mr. S. Dey, learned counsel for the respondent has submitted that without arguing on the merits of this case, the submission of the learned Sr. counsel for the petitioner that the matter be remanded for the purpose of recording of evidence is also found agreeable and necessary orders may be passed in this regard. However, it is submitted that status quo may be allowed to be maintained till disposal of the matter before the learned Additional Deputy Commissioner.

8. Upon consideration of the submissions of the parties, this Court hereby directs the learned Additional Deputy Commissioner to record the evidence of the parties and to pass necessary orders as provided under Section 133 Cr.PC after hearing the parties.

9. Status quo as prayed is also hereby directed to be maintained.

10. Consequently, the impugned order is hereby set aside and quashed.

11. The learned Additional Deputy Commissioner is directed to complete the proceedings preferably within a period of six months from date.

12. Let copy of this order be issued upon the learned Additional Deputy Commissioner, South West Garo Hills, Ampati for compliance.

13. With the above, this petition is hereby disposed of.