Dhiraj Das vs State Of U P And 2 Others
2021 Latest Caselaw 238 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 74
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 16079 of 2020
 

 
Petitioner :- Dhiraj Das
 
Respondent :- State Of U P And 2 Others
 
Counsel for Petitioner :- Shadab Alvi,Rizwan Jamal Alvi
 
Counsel for Respondent :- G.A.
 

 
Hon'ble J.J. Munir,J.

By the impugned order dated 30.09.2020 passed by the learned Additional Sessions Judge-III, Jaunpur in Criminal Revision no.235 of 2019, the order dated 04.12.2019 made by the Magistrate making the order absolute under Section 133 Cr.P.C. and directing removal of the temple, claimed to be located on a public way, has been set aside.

Heard Mr. R.J. Alvi, learned Counsel for the petitioner and Mr. Dinesh Kumar Srivastava, learned A.G.A. appearing on behalf of respondent no.1.

A perusal of the impugned order shows that the learned Additional Sessions Judge has set aside the Magistrate?s order primarily on ground that there is no evidence on record to show that the temple exists over a public way. When this matter came up for admission, the Court specifically inquired of the learned Counsel appearing for the petitioner, whether there is any evidence in the sense of a revenue entry or a public record to show that the land, where the temple is located is indeed a public way.

Learned Counsel for the petitioner has not been able to point out any evidence on record which may show that the temple, in fact, is located on a public way. He has referred to a Commissioner?s map, filed in Original Suit no.1 of 1978, which was a suit under Section 92 CPC for removal of the existing trustees of the temple, appointment of plaintiff nos.2 to 6 in their place and for framing a scheme for management. This suit came to be dismissed by a judgment and decree dated 07.03.2003. First Appeal no.511 of 2003 from the said decree is pending before this Court. Much reliance has been placed on the Commissioner?s map on the record of the proceedings of the suit. A Commissioner?s map is evidence in the suit inter partes for all its worth. It is, however, not a record of rights, which may be relied upon in another proceedings, particularly, under Section 133 Cr.P.C. Proceedings, under Section 133 Cr.P.C., can be maintained only where there is obstruction of a public way. These are not available where the road or way is not public, but private or of any other kind.

In view of the findings that the learned Sessions Judge has recorded and the evidence otherwise brought to this Court?s notice, this Court does not find it to be a fit case to be admitted to hearing.

This petition is, accordingly, dismissed in limine.

Order Date :- 6.1.2021

Anoop