Case Note & Summary
The case involves a criminal revision petition filed by Shri Laxman alias Bala Govekar (petitioner) against an order of the learned Sessions Judge, Margao, dated 27.04.2006, which set aside the order of the Executive Magistrate, Margao, dated 05.12.2003 dropping proceedings under Section 133 of the Code of Criminal Procedure, 1973 (CrPC). The dispute is between the petitioner and respondent nos. 1 and 12 (Janardhan S. Kalangutkar and Vithal S. Arondekar) over a right of way. All parties are Mundkars (tenants) residing in the property of one Smt. Ana Clara Figueiredo de Albuquerque de Souza. The petitioner had constructed a wall that allegedly obstructed a way used by the respondents. The respondents initiated proceedings under Section 133 CrPC before the Executive Magistrate, who after hearing the parties, dropped the proceedings on the ground that the dispute was of a civil nature and the right of way was seriously disputed. The respondents then filed a revision before the Sessions Judge, who set aside the Magistrate's order and directed the Magistrate to proceed with the matter. Aggrieved, the petitioner filed the present revision before the High Court. The High Court examined the scope of Section 133 CrPC and held that it is a summary remedy intended for urgent cases of public nuisance or imminent danger, and not for settling private disputes over title or easementary rights. The court noted that the existence of a bona fide dispute regarding the right of way ousts the jurisdiction of the Magistrate under Section 133 CrPC. The High Court found that the Executive Magistrate had correctly appreciated the facts and law in dropping the proceedings. Consequently, the High Court allowed the revision petition, set aside the order of the Sessions Judge, and restored the order of the Executive Magistrate dropping the proceedings. The court clarified that the parties are at liberty to seek their remedies before the civil court.
Headnote
A) Criminal Procedure Code - Section 133 - Summary Proceedings - Right of Way - Dispute between Mundkars - The Executive Magistrate dropped proceedings under Section 133 CrPC on the ground that the dispute was of a civil nature and the right of way was seriously disputed. The Sessions Judge set aside that order. The High Court held that the Magistrate was correct in dropping proceedings because Section 133 CrPC is not intended to settle private disputes over title or easementary rights, and the existence of a bona fide dispute regarding the right of way ousts the Magistrate's jurisdiction. (Paras 1-10) B) Criminal Procedure Code - Section 133 - Jurisdiction - Disputed Civil Rights - The High Court held that where there is a serious dispute regarding the existence of a right of way, the Magistrate cannot proceed under Section 133 CrPC as it is a summary remedy meant for urgent cases of public nuisance or imminent danger. The proper remedy is to approach the civil court. (Paras 5-10) C) Criminal Procedure Code - Section 133 - Mundkars - Right of Way - The parties were Mundkars (tenants) under the same landlady. The petitioner had constructed a wall allegedly obstructing a way used by the respondents. The respondents claimed a right of way, which the petitioner disputed. The High Court held that such a dispute over easementary rights cannot be resolved in summary proceedings under Section 133 CrPC. (Paras 3-10)
Issue of Consideration
Whether the learned Sessions Judge was justified in setting aside the order of the Executive Magistrate dropping proceedings under Section 133 CrPC in a dispute involving a right of way between Mundkars, where the existence of the right was seriously disputed.
Final Decision
The High Court allowed the revision petition, set aside the order of the Sessions Judge dated 27.04.2006, and restored the order of the Executive Magistrate dated 05.12.2003 dropping the proceedings under Section 133 CrPC. The parties were left to seek their remedies before the civil court.
Law Points
- Section 133 CrPC proceedings are summary in nature and cannot be used to adjudicate disputed questions of title or civil rights
- Magistrate must be satisfied of imminent danger or nuisance
- existence of dispute regarding right of way ousts jurisdiction under Section 133 CrPC
