Hon’ble Mr. Subhash Upadhyay, J.

1. The present Criminal Misc. Application under Section 482 of the Code of Criminal Procedure, 1973, (Cr.P.C.), was filed by the applicant Shir Vishambhar Singh Negi (hereinafter referred as ‘applicant no.1’) assailing the order dated 30.01.2021, passed by learned Additional Sessions Judge, IIIrd Dehradun, in Criminal Revision No. 09 of 2019, Vishamber Singh Negi vs. State of Uttarakhand and others, and order dated 11.01.2019, passed by City Magistrate, Dehradun, in Case No. 52 of 2018, State of Uttarakhand through Sub Divisional Magistrate (Sadar), Dehradun vs. Vishamber Singh Negi and another, under Section 133 Cr.P.C. directing the applicant no. 1 and performa respondent no. 3 to remove the encroachment from 15 ft. width public path adjoining to their houses within a period of one month. During pendency of the revision, the applicant no.1 Shri Vishambhar Singh Negi died and is represented by his legal heirs.

2. The brief facts, which led to the filing of the present C-482 application is that, an application under Section 133 Cr.P.C. was filed by the respondent no.2, who claimed herself to be widow of late Anil Pundir, residing with her aged parents, before the District Magistrate Dehradun on 30.01.2018 making complaint that the public-path has been blocked by the applicant no. 1 and he is parking his vehicles in the remaining part of the path, thus creating public nuisance. A request was, as such, made for opening the blocked pathway and for restraining the applicant no. 1 from parking vehicles and creating nuisance.

3. The District Magistrate, Dehradun on 05.02.2018 directed the S.D.M., Dehradun to carry a spot inspection and to take appropriate action. A team of Revenue Officials and Naib Tehsildar was constituted on 7^th February, 2018, which submitted a report before the S.D.M.Dehradun. The said report along with his recommendation was submitted by the S.D.M. on 14.03.2018 to the City Magistrate, Dehradun for taking cognizance under Section 133 Cr.P.C. against the applicant no.1. The City Magistrate on 24.03.2018, passed an order, by which, the applicant no.1 was asked to remove the encroachment made on public-path by 09.04.2018 or to show cause as to why further proceedings under Section 136/138 Cr.P.C., may not be carried out against him. The applicant no.1 submitted his response and after hearing the parties, the order dated 11.01.2019 was passed by the City Magistrate, Dehradun, in Case No. 52 of 2018, under Section 133 Cr.P.C. The said order was put to challenge by the applicant no.1 by filing the Criminal Revision No. 9 of 2019, which was decided on 30.01.2021 by the learned Additional Sessions Judge, IIIrd, Dehradun against which the present Criminal Revision has been filed.

4. Learned counsel for the applicant assailing the aforesaid orders, has made the following submissions.

(i) The order passed by the City Magistrate under Section 133 Cr.P.C. and the order passed by learned Additional Session Judge are liable to be quashed because for the similar controversy, a Civil Suit (Original Suit No. 47 of 2018), was filed which is still pending before the Civil Judge (Junior Division), whereby a status quo order was passed on 3^rd April, 2018.

(ii) The father of respondent no. 2, Shri Teerath Singh Rawat has filed a written statement and also counter-claim in the said suit whereby it was pleaded that the applicant no. 1 may be directed not to interfere in their possession and the application claiming the said relief was dismissed on 14.02.2019.

(iii) That when the father of respondent no. 2, who was the defendant in the said suit, could not obtain any order then the respondent no. 2 filed a complaint before the District Magistrate, wherein the proceedings were initiated under Section 133 Cr.P.C. and the impugned order dated 11.01. 2019 was passed, which was affirmed in the Criminal Revision.

(iv) The path in dispute is not a public path, and the road, on which the alleged encroachment is said to