Case Note & Summary
The petitioner, Nitin Satish Naik, filed a complaint before the Executive Magistrate, Canacona, under Section 133 of the Code of Criminal Procedure, 1973 (CrPC), alleging that the first respondent, Nilu Sundar Naik, had constructed a wall causing obstruction and nuisance on a pathway that the petitioner claimed was a public right of way. The petitioner asserted that the pathway was part of an ancestral property orally partitioned between his father and the respondent's father. The Executive Magistrate passed an order on 17/08/2011 directing removal of the obstruction. The first respondent appealed to the Sessions Court at Margao in Criminal Appeal No. 100/2011. The learned District and Sessions Judge, by judgment dated 05/07/2012, allowed the appeal and set aside the Executive Magistrate's order, holding that the dispute involved a civil right of way which could not be adjudicated in summary proceedings under Section 133 CrPC. The petitioner then filed the present criminal revision before the High Court of Bombay at Goa. The High Court examined the scope of Section 133 CrPC and found that the provision is intended for removal of public nuisance and not for settling disputed civil rights. The court noted that the Executive Magistrate had not recorded any evidence to establish the existence of a public right of way or nuisance. The High Court agreed with the Sessions Judge that the matter required a civil suit for declaration and injunction. Consequently, the High Court dismissed the revision application, upholding the Sessions Judge's order. The court observed that the petitioner's remedy lies in a civil court, not in summary proceedings under Section 133 CrPC.
Headnote
A) Criminal Procedure Code - Section 133 CrPC - Summary Proceedings - Disputed Right of Way - The Executive Magistrate initiated proceedings under Section 133 CrPC based on a complaint alleging obstruction of a pathway. The Sessions Judge set aside the order holding that the dispute involved a civil right of way which could not be adjudicated in summary proceedings under Section 133 CrPC. The High Court upheld the Sessions Judge's order, observing that the existence of a public right of way was seriously disputed and the proceedings under Section 133 CrPC are not intended to settle such disputes. (Paras 2-6) B) Criminal Procedure Code - Section 133 CrPC - Nuisance - Requirement of Evidence - The complainant alleged that the respondent had constructed a wall causing nuisance and obstruction. The High Court noted that the Executive Magistrate had not recorded any evidence to establish the existence of a public right of way or nuisance. The Sessions Judge rightly held that the matter required a civil suit for declaration and injunction. (Paras 4-6) C) Criminal Procedure Code - Section 133 CrPC - Scope - Civil Dispute - The High Court held that Section 133 CrPC is meant for removal of public nuisance and not for adjudication of disputed civil rights. Where the existence of a public right is seriously contested, the proper remedy is a civil suit. The revision was dismissed. (Paras 5-6)
Issue of Consideration
Whether the learned Sessions Judge was justified in setting aside the order passed by the Executive Magistrate under Section 133 of the Code of Criminal Procedure, 1973, on the ground that the dispute involved a civil right of way which could not be adjudicated in summary proceedings under Section 133 CrPC.
Final Decision
The High Court dismissed the criminal revision application, upholding the Sessions Judge's order setting aside the Executive Magistrate's order under Section 133 CrPC.
Law Points
- Section 133 CrPC summary proceedings not for disputed rights of way
- civil remedy appropriate
- oral partition not sufficient to establish right
- nuisance must be proved by evidence
