Page No.# 1/9 GAHC010037862023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet./189/2023 ABDUL KARIM CHOUDHURY S/O LATE ABDUL MANAF CHOUDHURY, VILL-KALINAGAR PART-VI, P.O.- KALINAGAR, P.S.-PANCHGRAM, DIST-HAILAKANDI, ASSAM, PIN-788801 VERSUS THE STATE OF ASSAM AND ANR REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM 2:SIRAJUL HOQUE CHOUDHURY S/O LATE LATIB ALI CHOUDHURY VILL-KALINAGAR PART-VI P.O.-KALINAGAR P.S.-PANCHGRAM DIST-HAILAKANDI ASSAM PIN-78880 Advocate for the Petitioner : MR. A M S MAZUMDER Advocate for the Respondent : PP, ASSAM, MR. A M BARBHUIYA (R-2) Page No.# 2/9 BEFORE HONOURABLE MRS. JUSTICE MITALI THAKURIA Date of hearing : 02.12.2024 Date of Judgment : 28.02.2025 JUDGMENT & ORDER (CAV) Heard Mr. A.M.S. Mazumder, learned counsel for the petitioner. Also heard Ms. S. H. Borah, learned Additional Public Prosecutor for the State respondent No.1 and Mr. A. M. Barbhuiya, learned counsel for the respondent No.2. 2. This application is filed under Sections 482 of the Code of Criminal Procedure, 1973, read with Article 227 of the Constitution of India, challenging the impugned Judgment dated 11.02.2022 passed by the learned Sessions Judge, Hailakandi, in Criminal Revision No. 39/2020. The judgment set aside the order dated 09.12.2020 passed by the learned Sub-Divisional Magistrate, Hailakandi, in Case No. 255M/2020 under Section 133 Cr.P.C. In that order, the learned Magistrate had initiated proceedings under Section 133 Cr.P.C. against respondent No.2, directing the Officer-in-Charge (O/C) of the concerned Police Station, Panchgram P.S., to remove any obstruction erected by respondent No. 2 from the scheduled path (road). 3. The brief facts of the case are as follows: 3.1. The petitioner is a resident of Village Kalinagar Part-VI in Hailakandi District. There is an old path (village road) located near the PWD Road at Kalinagar Part-VI, just opposite the public pond. This path is the only means of communication for the locality and for the students of 412 No. Tillagram L.P. School and Tillagram Jama Masjid. There is no alternative path for the people of the locality. However, the respondent No.2 suddenly obstructed the path by Page No.# 3/9 encroaching on it and planting betel nut trees and banana trees, causing significant difficulties for the villagers and students of the school. 3.2. On 09.10.2020, the petitioner, along with 36 others, filed a petition before the Deputy Commissioner of Hailakandi, requesting the removal of the obstruction. The petition was numbered Case No. 255M/2020 (Abdul Karim Choudhury vs. Sirajul Haque Choudhury) and forwarded to the Sub- Divisional Magistrate’s Court for disposal. After hearing the petitioner and others, the learned Sub-Divisional Magistrate called for a police report. Upon reviewing the report and materials, the Magistrate issued an order on 09.12.2020 to initiate proceedings under Section 133 of the Cr.P.C. against respondent No.2, directing the concerned police to remove any obstruction. The learned Magistrate also ordered respondent No.2 to appear before the Court and file a written statement, with a hearing scheduled for 25.02.2021. Additionally, the O/C was directed to maintain peace in the locality and execute the order following all formalities. 3.3. Subsequently, respondent No.2 challenged the Order dated 09.12.2020 by filing a Criminal Revision Petition vide No. 39/2020 before the learned Session Judge of Hailakandi. The learned Session Judge, while considering the revision petition, also requested a police report. On 16.03.2021, the Officer-in-Charge of Katakhal Police Outpost submitted his report, confirming that respondent No.2 had obstructed the scheduled path. Despite this, by an impugned Judgment dated 11.02.2022, the learned Session Judge, Hailakandi allowed the revision petition and set aside the Order dated 09.12.2020 which was passed by the learned Sub-Divisional Magistrate, Hailakandi in Case No.255M/2020. 4. Being highly aggrieved and dissatisfied with the impugned Judgment dated Page No.# 4/9 11.02.2022 passed by the learned Sessions Judge, Hailakandi, in Criminal Revision Case No. 39/2020, the petitioner has filed this petition praying for the setting aside of the impugned Judgment dated 11.02.2022. 5. Mr. Mazumder, learned counsel for the petitioner, has submitted that the learned Revisional Court failed to appreciate that the order dated 09.12.2020 passed in Case No. 255M/2020 under Section 133 Cr. P.C. is an interlocutory order. According to Section 397(2) of Cr. P.C., the learned Revisional Court has no jurisdiction to exercise revisionary powers concerning any interlocutory order passed in any appeal, inquiry, or trial. However, the learned Revisional Court failed to consider this provision and passed the impugned Judgment dated 11.02.2022, thereby, setting aside the order dated 09.12.2020. 6. He further submitted that while passing the impugned Judgment dated 11.02.2022, the learned Revisional Court acknowledged that the order dated 09.12.2020 had been passed by the learned Magistrate for the removal of obstruction under Section 133 Cr. P.C., considering the emergent situation. The Court was satisfied with the police report, which revealed that the disputed path had been blocked by respondent No.2, and thus, there was no impediment to passing such an ex-parte order of removal. On the other hand, the learned Revisional Court, without considering the facts and circumstances and lacking jurisdiction, passed the impugned Judgment dated 11.02.2022, which is not sustainable in law and should be set aside. 7. Mr. Mazumder, learned counsel for the petitioner further submitted that the learned Revisional Court failed to appreciate the fact that the learned Sub- Divisional Magistrate, Hailakandi passed the order on 09.12.2020 after being fully satisfied with the police report, which indicated that there was a real Page No.# 5/9 possibility of a breach of peace and public tranquility in the locality. The report also showed the likelihood of group clashes between the parties if the obstruction were not removed. However, the learned Revisional Court, without considering such materials, passed the impugned judgment, which should be set aside. 8. Moreover, the learned Revisional Court also failed to consider the police report, which was specifically requested by the court itself on 17.02.2021 from the Officer-in-Charge of Panchgram (the concerned police station). The report confirmed that the disputed village path had been blocked by respondent No.2, causing obstruction for the villagers, students, and teachers. Despite this, the learned Revisional Court, without considering these basic facts and available materials, passed the impugned Judgment dated 11.02.2022. Therefore, it is submitted that the Court of the learned Sessions Judge committed a grave error in passing the revision order, and accordingly, he prays for setting aside and quashing of the said impugned Judgment dated 11.02.2022. 9. In this context, Ms. S. H. Borah, learned Additional Public Prosecutor has submitted that from the record it is seen that the order of removal of obstruction dated 09.12.2020 was passed ex-parte without giving any chance of hearing to the respondents’ side. She further submitted that the learned Revisional Court had rightly passed the order dated 11.02.2022 by vacating the ex-parte order dated 09.12.2020 of removal of obstruction and asking both the parties to appear before the learned Magistrate and to prove their own cases by adducing necessary evidence. Accordingly, she submitted that no illegality has been committed by the learned Sessions Judge, Hailakandi while passing the Judgment dated 11.02.2022 in Criminal Revision Case No.39/2020. Page No.# 6/9 10. On the other hand, Mr. Barbhuiya, learned counsel for the respondent No.2 has submitted that the learned Magistrate had passed the impugned ex-parte order dated 09.12.2020 only on the basis of the verbal submission of the present petitioner. Though, the respondent No.2 was ready to appear before the learned Magistrate with relevant documents and other particulars to prove that the aforesaid disputed land is duly purchased by him. But without giving any opportunity of hearing, and without issuing any notice to the respondent No.2, the learned Sub-Divisional Magistrate, Hailakandi passed the order of removal of obstruction, directing the Officer-in-Charge to remove any obstruction erected by the respondent No.2 on the said disputed land. He further submitted that the learned Revisional Court had rightly passed the order by vacating the order of ex-parte and directing both the parties to appear before the learned Magistrate and to produce the relevant documents and evidence as well to prove their own cases, but without following the order of the Revisional Court, the present petition has been filed by the petitioner only to harass the respondent No.2 from enjoying his right over the land which was purchased by him. He also raised the issue of maintainability of revision against the interlocutory order and submitted that an interlocutory order which affects or adjudicate the rights of the parties cannot be regarded as an interlocutory order. 11. Here in the instant case, also the order of removal of obstruction from the disputed land is also can be regarded as one kind of order which affects the right of the parties and hence, in such a situation the revision lies before the Revisional Court against such kind of order. In addition to his submission, he also relied on a decision passed by the Co-Ordinate Bench in the case of Indrapuri Primary Co-Operative Housing Society Ltd. and Anr. Vs. Sri Bhabani Gogoi, reported in 1991 1 GLR 28 and emphasized on paragraph Page No.# 7/9 No. 11 of the said judgment which read as under: “11. In view of the above discussions, there are interlocutory orders which can be called or regarded as judgments considering the meaning of 'judgment' stated above. In other words, every interlocutory order cannot be regarded as a judgment, but only that order would be or would be regarded as a judgment which decides the matter of moment affecting the valuable rights of the parties, or the interlocutory order which contains traits and trappings of finality either when the order decides the question for controversy in the main proceeding or ancillary proceeding or in a part of the proceedings. Therefore, there are two kinds of interlocutory orders, one which would be regarded as a judgment and other which would not be regarded as a judgment.” 12. He further submitted that Section 133 of Cr. P.C. itself provides that if the person alleged to have caused the obstruction objects, to comply with the conditional order, then he may appear before the concerned Magistrate at a time and place fixed by the order to show cause as to why the order should not be made absolute. He further submitted that an order for the removal of obstruction can only be made if the Magistrate is satisfied with the circumstances of the case and finds it necessary to maintain peace and tranquility over the disputed land. In support of this argument, he relied on the decision of the Orissa High Court in Narayan Sahu vs. Sub-Divisional Magistrate, Jaipur, reported in 1986 CRI L.J. 102. 13. He also submitted that there is no evidence to suggest that the public was using the path or that respondent No. 2 had obstructed it. Instead, the dispute between the parties is a private matter. Therefore, Section 133 of the Cr. P.C. cannot be invoked to settle a private dispute. He further submits that the matter should be taken up before the Civil Court, which is the proper forum to decide the rights of private parties. Consequently, Section 133(1) cannot be used for settling such private disputes. He further submits that the learned Revisional Court, after considering all aspects of the case, had rightly passed the order directing both parties to appear before the learned Magistrate with their Page No.# 8/9 respective documents and evidence. Accordingly, he also submitted that the instant criminal petition is not maintainable and should be dismissed. 14. After hearing the submissions made by the learned counsels for both sides, I have perused the record and the annexures filed along with the petition. It is a fact that a complaint was made before the learned Magistrate alleging that the respondent No.2 had obstructed a path used by the general public, specifically by school students. The learned Magistrate also called for a police report, and on the basis of the said report, the order of removal of obstruction was passed on 09.12.2020, directing the Officer-in-Charge to remove the obstruction. However, the order does not mention anything regarding the issuance of service of notice to the respondent No.2 before passing the ex-parte order. Thus, it is clear that before passing the order of removal of obstruction, respondent No. 2 was not provided an opportunity to be heard or to present evidence before the concerned Magistrate. The order was passed solely on the verbal submission of the petitioner and the police report, invoking Section 133(1) of the Cr.P.C. However, both parties were directed to appear before the learned Magistrate on the next date with their respective evidence and written statements. Despite this, the respondent No. 2 filed a revisional petition before the learned Sessions Judge against the ex-parte order dated 09.12.2020. It is an admitted fact that the ex-parte order passed by the learned Magistrate was an interlocutory order, and it is also acknowledged that revisions do not lie against interlocutory order. However, it must be considered whether such an interlocutory order affects the rights of the parties or resolves the main issue in the case. In the present case, the dispute revolves around the obstruction of a public path, with the allegation that respondent No. 2 obstructed the path illegally, affecting the general public. This is the core issue of the dispute. Therefore, the order for removal of Page No.# 9/9 obstruction clearly affects the rights of the parties. As such, there is no bar to filing a revision petition to challenge an interlocutory order. Additionally, from the order passed by the Revisional Court, it is clear that the learned Court below rightly observed that to decide the rights of the parties, it was necessary for both sides to produce evidence and documents on which they are relying. Thus, the Revisional Court only directed the learned Trial Court to adjudicate the matter properly by allowing the parties to present their relevant documents. Without the production of evidence and documents, it would not be appropriate to decide the rights of the parties. The learned Sessions Judge, acting as the Revisional Court, therefore set aside the ex-parte order passed by the learned SDM, simply directing the parties to appear before the learned Sub-Divisional Magistrate without deciding the merits of the case. 15. It is evident that the learned Revisional Court granted both parties the opportunity to present their evidence and relevant documents so that the learned Magistrate can make a proper decision as to whether respondent No. 2 had created any obstruction or nuisance affecting the general public, which would warrant an order under Section 133(1) of the Cr.P.C. Therefore, I do not find any reason to interfere with the Judgment dated 11.02.2022 passed by the learned Sessions Judge, Hailakandi, in Criminal Revision Case No. 39/2020 and accordingly, the same stands dismissed. 16. Furthermore, the parties are at liberty to approach the civil forum for proper adjudication of the matter, if the dispute is of private in nature. 17. With above observation, this criminal petition stands disposed of. JUDGE Comparing Assistant