Ghurahu Das vs Shakalraj Das

Daniels, J.—This is a reference by the learned Sessions Judge of Gorakhpur, asking this Court to set aside an order passed u/s 133, Criminal P.C., in regard to an alleged obstruction on a public road. The learned Sessions Judge has given good reasons for setting aside the order. In the first place even on the finding of the Magistrate the alleged obstruction is at least fifteen or sixteen years old. Section 133 is not intended to be employed to avoid the necessity of filing a civil suit in regard to a construction which has been in existence for fifteen years. In the second place the Naib Tahsildar who inspected the spot found that there was no obstruction, and his report is supported by the settlement map. The reason given by the Magistrate, for accepting the Qanungo''s report in preference to that of his superior officer which is supported by the settlement record are extremely flimsy. As regards Section 139-A, I am not sure that the learned Sessions Judge has correctly interpreted the law. The defendant did not deny the existence of a public road at that place; he merely denied that he had encroached upon it. The other two reasons given by the learned Sessions Judge are however, amply sufficient to justify the Magistrate''s order being set aside and I set it aside accordingly.