Encroachment of public ways constitutes public nuisance; procedural adherence in lower courts is crucial and previous determinations of public status are binding.

1. This application under S.482 of Cr.P.C. has been filed against the order dated 16/3/2020 passed by Seventh Additional Sessions Judge, Guna in Criminal Revision No.16/2020, thereby affirming the order dated 24/1/2020 passed by SDM, Guna in Criminal Case No.2/133/2019 by which the CMO, Guna has been directed to immediately remove the encroachment done by the applicant.

2. The necessary facts for disposal of the present revision in short are that the respondent No.4 Banwarilal made an application on 6/9/1995 under S.133 of Cr.P.C. on the allegations that the applicant has blocked the public way by installing a gate, as a result, public nuisance is being caused.

3. The said application was dismissed by the SDM, Guna by order dated 31/8/1996 on the ground that a Civil Suit is pending between the parties.

4. Being aggrieved by the said order, the respondent No.4 preferred a Criminal Revision which was allowed by Second Additional Sessions Judge, Guna by order dated 10/3/1997 and the order dated 3/8/1996 passed by SDM, Guna was set aside and the matter was remanded back for decision on merits. Thereafter, the SDM, Guna by order dated 20/1/2000 again dismissed the application filed by the respondent No.1. Being aggrieved by the said order, the respondent No.1 preferred a revision which was allowed by the Court of Second Additional Sessions Judge by order dated 29/12/2000 and the matter was remanded back with a direction to carry out spot inspection and if it is found that any construction has been raised on a public place resulting in public nuisance, then action be taken to remove the same.

5. Thereafter, in compliance of the remand order dated 29/12/2000 the matter was again taken up for hearing and by order dated 4/3/2004 the application filed by respondent No.1 was dismissed. Being aggrieved by the order of the SDM dated 4/3/2004 passed in case No.1/2001/133 / Cr.P.C. respondent No.4 filed a Criminal Revision No.116/2004, whereas one Ashok Kumar Jain filed Criminal Revision No.114/2004. Both the revisions were decided by the Third Additional Sessions Judge (Fast Track) Guna by judgment dated 9/8/2005 and held that "undisputedly a civil proceeding had taken place between the parties and by judgment dated 27/7/1965 it was held that the lane in question is a public lane. The said judgment went upto the High Court, which dismissed the Second Appeal filed by the applicant. Thus, it is clear that the lane on which the applicant has constructed a gate is a public lane and, therefore, the Court below was only required to see as to whether the applicant has raised any obstruction on the public road or not and if it was found that an obstruction has been raised, then the Court below was left with no other option, but to proceed further under S.133 of Cr.P.C. for removal of public nuisance". It was further observed that as per the spot inspection report Ex.P / 1, it is clear that the applicant has blocked the public way by installing a gate. It was further observed that the obstruction of public way is a public nuisance, which has already been directed by the Revisional Courts on previous occasions and accordingly, the Court below is not required to adjudicate as to whether the act of the applicant in obstructing the public way would fall within the category of public nuisance or not and in case if any construction is found, then the Court below should have proceeded under S.137 and S.138 of Cr.P.C. It was further observed that when the High Court has already held that the road in question is a public way, then the act of the SDM in ignoring the judgment passed by the High