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Judgment
Heard Ms. T. Som, the learned counsel for the petitioners and also heard Mr. R.C. Saikia, the learned counsel for the respondents.
By this application under Section 482 Cr.PC the petitioners have challenged the order dated 23.11.2015 passed by the learned Additional Sessions Judge No. 3, Kamrup in C.R. Case No. 29/2015 whereby the case of the petitioners has been dismissed.
It is stated that the petitioners moved a petition before the Court of Additional District Magistrate, Kamrup(M) under Section 133 Cr.PC in regard to dispute of possession of path between the petitioners and the respondents. According to them they are enjoying a road measuring 14x166 ft covered by Dag No. 455 KP Patta No. 9 of village Pamohi under Ram Sarani Mouza and which they purchased from the second party on due consideration and it is alleged that the second party forcefully tried to occupy the public path. On the basis of the aforesaid complaint the learned Court registered the same as Case No. 62m/2014 under Section 133 Cr.PC and the learned Court obtained reports of the O/C, the Gorchuk P.S. as well as Circle Officer, Azara Revenue Circle wherein it was reported that during enquiry no obstruction over a public path could be noticed, which was running over the land of the second party who is the pattadar of the said land. The learned Court on perusal of the report was of view that as the said road was running over a patta land and therefore the road thus could not be treated as a public road and as such proceeding under Section 133 Cr.PC is not maintainable and a proceeding under Section 133 Cr.PC is not intended to settle the private dispute. Thus on the basis of such report the learned Court dropped the proceeding with an observation that aggrieved parties should have approached to the civil court for their remedy instead of taking recourse to provision 1 of 133 Cr.P.C.
By order dated 09.03.2015 a revision was preferred against the aforesaid order which was registered as Criminal Revision Petition No. 29/2015 and the learned trial Court although initially passed an interim order staying the order of the Magistrate Court but subsequently on 23.11.2015 the Court dismissed the case for non-prosecution as the petitioner did not turn up on two consecutive dates and also vacated the interim order passed earlier on 18.03.2015.
Being aggrieved, present petition has been preferred challenging the aforesaid order so passed by the revisional court on the ground that the learned revisional court failed to take note of the fact that once prima facie order was passed on the police report, the learned trial court should dispose the case after examining the witnesses from both the parties. Accordingly, it has been contended that the initially findings was in favour of the petitioners but the learned trail court without proper scrutiny of the law in force and materials available on record dismissed the case for non-prosecution which is bad in law.
I have gone through the documents annexed and considered the submissions of learned counsel for both the parties.
The learned counsel for the petitioners submits that the learned revisional court had the scope to appreciate the entire materials on record and Dismissal of the case without deciding the case on merit is bad in law and such an order is liable to be quashed and set aside.
The learned counsel for the respondents however made his submission relying on the affidavit so filed by them contending that there is no legality in the order so passed by learned trial Court as well as the revisional court, as, such an order passed by the trial Court on the basis of the police report and the report of Circle Officer and not by his own. The Section 133 Cr.P.C. also mandated that prior to passing of any conditional order, procurement of such report from the Officer is mandatory. On the next it is contended that the petitioners remained absent without pursuing the case before the revisional court so there is no illegality in the order so passed by the revisional Court. Over and above it has been submitted that in terms of the order so passed by the learned Court below, that the party has a option to take recourse for civil remedy, the respondents have already filed civil suit TS 115/2016 against the present petitioner claiming right, title and interest and possession over the disputed land including the disputed road mentioned in the present petition. The learned Court of Munsiff No.1, Kamrup, Guwahati by its order dated 24.05.2016 has decreed the suit in favour of the respondent Smt. Sabitri Patowary that the scheduled land 'A' and Scheduled B land (the disputed path which is the subject matter of the proceeding u/s 133 Cr.PC) to belong to her and accordingly it has been submitted that the petitioners herein cannot dispute about aforesaid path while the same has been adjudicated by a Civil Court.
On due consideration of the matter it is to be noted that such an order of the Civil court on competent jurisdiction that too between same parties is binding upon the parties and judicial notice of the same can be taken. So far the present case is concerned, the petitioners herein raised the dispute over the path belonging to the respondents which is now decided by the Court for competent jurisdiction and on that pretext the petitioners' prayer to decide the same by a Court of Magistrate u/s 133 Cr.PC., is not maintainable.
If we go to the order by the revisional court dated 23.11.2015 which is under challenge it is to be noted that the petitioners have not come forward with any cogent reasons for their inability to pursue the case before the revisional court while it was taken up for hearing. More so, the petitioner intends to discuss the merit of the case, against the court that was passed by the Magistrate. In view of all materials on record and order so passed by the learned revisional court dated 23.11.2015 nothing remain, to interfere by this Court.
From the totality of the discussion and findings above, I find no merit in the present petition the same is dismissed.
The petitioner is at liberty to challenge the aforesaid findings of the Civil Court by appeal.
Return the LCR alongwith the copy of judgment.