Gauhati High Court
Sukkur Ahmed Barbhuiya vs The State Of Assam And Anr on 26 July, 2022
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GAHC010055742022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./301/2022
SUKKUR AHMED BARBHUIYA
S/O. LT. FAJIL UDDIN BARBHUIYA, VILL ALITIKAR, P.O. MEHERPUR, P.S.
SILCHAR, DIST. CACHAR, ASSAM, PIN-788015.
VERSUS
THE STATE OF ASSAM AND ANR
REP. BY PP, ASSAM.
2:SARIMUL HAQUE BARBHUIYA @ SAJU
S/O. LT. KUTI MIA BARBHUIYA
VILL. ALITIKAR
P.O. MEHERPUR
P.S. SILCHAR
DIST. CACHAR
ASSAM
PIN-788015
Advocate for the Petitioner : MR. N ISLAM
Advocate for the Respondent : PP, ASSAM
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-BEFORE-
HON'BLE MR. JUSTICE ROBIN PHUKAN
Advocate for the Petitioner : Mr. N. Islam, Adv.
Advocate for the respondents : Mr. K. K. Parashar, Addl. PP,
Ms. R. Choudhury, Adv. for R-2.
Date of hearing : 19.07.2022.
&
Date of Verdict (CAV) : 26.07.2022.
VERDICT (CAV)
1. Heard Mr. N. Islam, learned counsel for the petitioner and also heard Mr. K.
K. Parashar, learned Addl. PP for State respondent No. 1 as well as Ms. R.
Choudhury, learned counsel for respondent No. 2.
2. In this application, under Section 482 of the Code of Criminal Procedure,
the petitioner has put to challenge the judgment and order dated 21.02.2022,
passed by the learned Addl. Sessions Judge, (FTC), Cachar, Silchar, in Criminal
Revision Case No.25/2022.
3. It is to be noted here that vide the impugned judgment and order, the
learned Court below has allowed the Criminal Revision preferred by respondent
No. 2 and set aside the order dated 22.11.2021, passed by the learned Addl.
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District Magistrate, Cachar, Silchar in Misc. Case No.694m/2021.
4. The factual background, leading to filing of the present petition is briefly
stated as under:-
"The petitioner purchased a plot of land measuring 6 katha, situated at
Barakpar village from one Saleh Ahmed Laskar by executing a registered
sale deed, dated 18.04.2021. Prior to that, the vendor purchased the
same land by registered sale deed, dated 05.04.2010. There is a private
path connected to a public path attached to the said plot of land and the
said fact is mentioned in both the sale deeds. Then, after purchasing of
the said land by the petitioner, the respondent No. 2 most illegally and
maliciously blocked the path which is only way to ingress and egress of
the petitioner's land. Thereafter, the petitioner had filed an application
before the District Magistrate, Cachar, Silchar under Section 147/133
Cr.P.C. praying for passing necessary order for removal of obstruction
made by the opposite party. The learned Addl. District Magistrate then
referred the matter to the Officer-in-Charge of Silchar Police Station for
enquiry and report. Accordingly, a report was submitted by the police and
on being satisfied, the learned Addl. District Magistrate, Cachar, Silchar
passed an order on 12.11.2021 and issued notice to the opposite party
and directed him to remove the obstruction from the path of the petitioner
within 7 (seven) days. Thereafter, the learned Addl. District Magistrate,
Cachar, Silchar passed another order, dated 27.01.2022 asking the
concerned Police to remove the obstruction created by opposite party
under Section 133 Cr.P.C. But, the opposite party did not comply with the
order. Instead on 01.02.2022, the respondent No. 2 preferred revision
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petition before the Learned Sessions Judge, Cachar, Silchar and vide
impugned Judgment and Order, dated 21.02.2022, the learned Court
below has set aside the order passed by the learned Addl. District
Magistrate, Cachar, Silchar on 12.11.2021 and 27.01.2022."
5. Being aggrieved, the petitioner approached this Court by filing the present
petition, on the ground that the impugned order passed by the learned Addl.
Sessions Judge, Cachar, Silchar suffers from manifest illegality. The learned
counsel for the petitioner submits that the learned Addl. District Magistrate,
Cachar, Silchar has rightly passed the order under Section 133 Cr.P.C. directing
the respondents to remove the obstruction and the learned court below has
illegally set aside the same. Therefore, it is contended to set aside the
impugned judgment and order passed by the learned Addl. District and Sessions
Judge, Cachar, Silchar.
6. Ms. R. Choudhury, learned counsel for the respondent No. 2 submits that
the dispute between the parties are private dispute and is of civil nature and the
jurisdiction under Section 133 Cr.P.C. cannot be invoked to resolve a private
dispute and the aggrieved party may approach the Civil Court in this regard and
admittedly the property is a private property having no concern with the public
and therefore, it is contended to dismiss the petition
7. Having heard the submission of the learned Advocates of both sides, I
have carefully gone through the petition and the documents placed on record
and also the ground mentioned in the petition. From the submissions of learned
Advocates of both sides and also perusal of the petition and the documents
placed on record, I find that the question to be answered by this Court is
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whether the provision of Section 133 Cr.P.C. can be invoked to resolve a private
dispute. In this regard, reference may be made to a decision of the Hon'ble
Supreme Court in the case of Suhelkhan Khudyarkhan and Another-vs-
State of Maharashtra and Others in Crl. Appeal No.1039/2005, wherein,
Hon'ble Supreme Court in no uncertain terms stated that proceeding under
Section 133 Cr.P.C. are not intended to settle private dispute between different
members of the public, they are in fact intended to protect the public as a whole
against inconvenience. Similar view is adopted by Jammu and Kashmir High
Court in the case of Girdhari Lal-vs-State of Jammu and Kashmir ;
reported in 2018 SCC OnLine J & K 793, wherein, it has been held that
Section 133 Cr.P.C. is not intended to settle the private dispute between the
parties but to ensure that public is protected from the inconvenience of a public
nuisance.
8. In the case in hand, admittedly, the road which is allegedly blocked by
respondent No. 2 is a private road connecting the land of the petitioner with a
public road. And admittedly, no inconvenience is caused to the public by the
said action of the respondent and as such, the dispute between the petitioner
and the respondent No. 2 is purely a private dispute and as such, provision of
Section 133 Cr.P.C. cannot be invoked to settle the aforesaid private dispute.
9. The learned Addl. District and Sessions Judge, Cachar, Silchar, by its,
judgment and order, dated 21.02.2022 in Paragraph-19 categorically stated that-
"Situated thus, it is apparent from the impugned order that the order, dated
12.11.2021 was passed, on the basis of police report, primarily with an
apprehension of breach of peace between the private parties. When the dispute
is between two private parties, executive powers ought not to have been
exercised, in the said subject matter, by issuing orders under Section 133 Cr.P.C."
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10. Again the learned Court below, in Paragraph No. 20 stated that -
"Situated thus, in view of foregoing discussion, I am of the measured opinion
that learned Executive Magistrate, Cachar, Silchar erred in passing order on
12.11.2021 in case No.694m/2021 under Section 133 Cr.P.C., which order is
arbitrary, illegal and not in accordance with law and the same is liable to be set
aside".
Accordingly, the learned Court below has set aside the order passed by the
Executive Magistrate on 12.11.2021.
11. Thus, having examined the impugned judgment and order in the light of
the law laid down by the Hon'ble Supreme Court in the case of Suhelkhan
(supra), this Court is of the considered opinion that the impugned judgment
and order, dated 21.02.2022 passed by the learned Addl. District and Sessions
Judge, Cachar, Silchar in Crl. Rev. No. 25/2022 suffers from no illegality or
infirmity requiring any interference of this Court.
12. In the result, I find no merit in the petition and accordingly, the same
stands dismissed. Interim order, if any, stands vacated.
The parties have to bear their own cost(s).
JUDGE
Comparing Assistant
