GAHC010037862023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : Crl.Pet./189/2023 ABDUL KARIM CHOUDHURY S/O LATE ABDUL MANAF CHOUDHURY, VILL-KALINAGAR PART-VI, P.O.- KALINAGAR, P.S.-PANCHGRAM, DIST-HAILAKANDI, ASSAM, PIN-788801 VERSUS THE STATE OF ASSAM AND ANR REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM

2:SIRAJUL HOQUE CHOUDHURY S/O LATE LATIB ALI CHOUDHURY VILL-KALINAGAR PART-VI P.O.-KALINAGAR P.S.-PANCHGRAM DIST-HAILAKANDI ASSAM PIN-78880 Advocate for the Petitioner : MR. A M S MAZUMDER Advocate for the Respondent : PP, ASSAM, MR. A M BARBHUIYA (R-2)

BEFORE HONOURABLE MRS. JUSTICE MITALI THAKURIA Date of hearing : 02.12.2024 Date of Judgment : 28.02.2025 JUDGMENT & ORDER (CAV)

Heard Mr. A.M.S. Mazumder, learned counsel for the petitioner. Also heard Ms. S. H. Borah, learned Additional Public Prosecutor for the State respondent No.1 and Mr. A. M. Barbhuiya, learned counsel for the respondent No.2.

2. This application is filed under Sections 482 of the Code of Criminal Procedure, 1973, read with Article 227 of the Constitution of India, challenging the impugned Judgment dated 11.02.2022 passed by the learned Sessions Judge, Hailakandi, in Criminal Revision No. 39/2020. The judgment set aside the order dated 09.12.2020 passed by the learned Sub-Divisional Magistrate, Hailakandi, in Case No. 255M/2020 under Section 133 Cr.P.C. In that order, the learned Magistrate had initiated proceedings under Section 133 Cr.P.C. against respondent No.2, directing the Officer-in-Charge (O/C) of the concerned Police Station, Panchgram P.S., to remove any obstruction erected by respondent No. 2 from the scheduled path (road).

3. The brief facts of the case are as follows:

3.1. The petitioner is a resident of Village Kalinagar Part-VI in Hailakandi District. There is an old path (village road) located near the PWD Road at Kalinagar Part-VI, just opposite the public pond. This path is the only means of communication for the locality and for the students of 412 No. Tillagram L.P. School and Tillagram Jama Masjid. There is no alternative path for the people of the locality. However, the respondent No.2 suddenly obstructed the path by encroaching on it and planting betel nut trees and banana trees, causing significant difficulties for the villagers and students of the school.

3.2. On 09.10.2020, the petitioner, along with 36 others, filed a petition before the Deputy Commissioner of Hailakandi, requesting the removal of the obstruction. The petition was numbered Case No. 255M/2020 (Abdul Karim Choudhury vs. Sirajul Haque Choudhury) and forwarded to the Sub- Divisional Magistrate’s Court for disposal. After hearing the petitioner and others, the learned Sub-Divisional Magistrate called for a police report. Upon reviewing the report and materials, the Magistrate issued an order on 09.12.2020 to initiate proceedings under Section 133 of the Cr.P.C. against respondent No.2, directing the concerned police to remove any obstruction. The learned Magistrate also ordered respondent No.2 to appear before the Court and file a written statement, with a hearing scheduled for 25.02.2021. Additionally, the O/C was directed to maintain peace in the locality and execute the order following all formalities.

3.3. Subsequently, respondent No.2 challenged the Order dated 09.12.2020 by filing a Criminal Revision Petition vide No. 39/2020 before the learned Session Judge of Hailakandi. The learned Session Judge, while considering the revision petition, also requested a police report. On 16.03.2021, the Officer-in-Charge of Katakhal Police Outpost submitted his report, confirming that respondent No.2 had obstructed the scheduled path. Despite this, by an impugned Judgment dated 11.02.2022, the learned Session Judge, Hailakandi allowed the revision petition and set aside the Order dated 09.12.2020 which was passed by the learned Sub-Divisional Magistrate, Hailakandi in Case No.255M/2020.

4. Being highly aggrieved and dissatisfied wit