Bijay Kumar Gupta @ Bijoy Kumar Gupta and Ors vs State Of Bihar and Anr

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.59338 of 2017
CNR No. BRHC010502362017
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1. Bijay Kumar Gupta @ Bijoy Kumar Gupta and Ors
2. Raj Kumar Gupta,
3. Prem Kumar Gupta.
4. Manoj Kumar Gupta, All sons of Late Mahendra Prasad Gupta,
5. Ashish Kumar Gupta, Son of Bijoy Kumar Gupta @ Bijoy Kumar Gupta.
All resident of Sujagang Bazar road, Near Bari Bata, Police Station-
Kotwali, District- Bhagalpur.
... ... Petitioner/s
Versus
1. State Of Bihar and Anr
2. Smt. Kalpana Gupta, Wife of Din Bandhu Prasad, Resident of Sujagang
Bazar Road, Near Bari Bata, Police Station- Kotwali, District- Bhagalpur.
... ... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. Ravi Prakash Dwivedi, Adv.
Mr. Saurabh Raj, Adv.
For the Opposite Party/s : Mr.Sri Anil Kumar Singh 1, APP
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CORAM: HONOURABLE MR. JUSTICE ANSUL
ORAL JUDGMENT
Date : 02-11-2026
Heard learned counsel for the petitioners and learned
Additional Public Prosecutor for the State.
2 . This application under Section 482 of the Code of
Criminal Procedure has been preferred for quashing of the order
dated 08.09.2016 passed in Miscellaneous Case No. 75 of 2016 by
the learned Sub Divisional Magistrate, Sadar, Bhagalpur, whereby
the petitioners were directed to remove an obstruction from a
drain, described as khesra No. 565, on a finding that the same

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amounted to a public nuisance within the meaning of Section 133
of the Cr.P.C., and also for quashing of the order dated 04.07.2017
passed in Criminal Revision No. 166 of 2016 by the learned
Additional Sessions Judge I, Bhagalpur, by which the said order
was affirmed.
3 . The case of opposite party no. 2 before the learned
Magistrate was that khesra No. 565, recorded in the name of
Nagar Palika, Bhagalpur, carries waste water from the properties
of both families and had been obstructed by the petitioners, giving
rise to a public nuisance requiring removal under Section 133 of
the Code. Reliance was placed on an agreement dated 20.05.1980
said to have been executed between the father of the petitioners,
late Mahendra Prasad Gupta, and the Nani of opposite party no. 2,
Smt. Lalita Sahun, the two families being Gotia.
4 . Learned counsel for the petitioners has taken this
Court through the terms of the said agreement and has submitted
that khesra No. 565 was throughout treated by both families as a
private passage, meant for their common use alone and not for the
public at large. It has been submitted that the petitioners' house
stands on khesra Nos. 564 and 566 in the name of their late father,
and that of opposite party no. 2 on khesra Nos. 562, 563 and 575
in the name of her Nani , and that the waste water of both

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households, in fact, drains not into khesra No. 565 but into the
main municipal nala running from Station Chowk to Khalifabagh.
The learned revisional court, while affirming the order of the
learned Sub Divisional Magistrate, appears to have proceeded on
the footing that the entry of the khesra in the name of Nagar
Palika, Bhagalpur, by itself clothed the passage with the character
of a public place.
5 . This does not follow as a matter of course. An entry
in municipal records touching ownership is one thing, the actual
user and character of the land is another, and the two need not
coincide. Nothing on the record before the learned Magistrate is
shown to have addressed this distinction, nor does the order dated
08.09.2016 record any finding on user, as opposed to ownership of
the khesra in question. A proceeding under Section 133 of the
Code is attracted where the nuisance is complained of affecting
the public at large or an indeterminate section of it, and stands on
an altogether different footing where the grievance, as here, arises
between two identified families under a private arrangement
between them. This distinction was not examined on the material
placed before the learned Magistrate, and the order suffers on that
count.

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6 . It has further been urged that the order dated
08.09.2016 was, in any event, a conditional order in the nature of
an interlocutory direction, contemplating a final order to follow
only after the parties were given opportunity to lead evidence and
produce witnesses, as the order itself records. Revision against
such an order, before the rights of the parties had been finally
determined one way or the other, was premature. This submission
has force, and the learned Additional Sessions Judge ought to have
addressed it before entering upon the merits of the revision.
7 . This Court notes, without attributing fault to either
side, that the matter remained pending on the file for a
considerable period before being taken up for final hearing.
Whatever course the proceeding before the learned Sub Divisional
Magistrate may have taken in the interregnum, including whether
any compliance was made pursuant to the order impugned herein,
is not a matter on which this Court considers it necessary to record
a finding, no such development having been placed before it by
either side by way of supplementary affidavit or otherwise. It shall
be open to the parties, if occasion so requires, to move to the
appropriate forum for such consequential relief as may be
available in law, having regard to what follows from the order
passed today.

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8 . In the result, the order dated 08.09.2016 passed in
Miscellaneous Case No. 75 of 2016 by the learned Sub Divisional
Magistrate, Sadar, Bhagalpur, and the order dated 04.07.2017
passed in Criminal Revision No. 166 of 2016 by the learned
Additional Sessions Judge I, Bhagalpur, are set aside.
9 . This application stands allowed.
(Ansul, J)
krishna/-
AFR/NAFR NAFR
CAV DATE 28.08.2026
Uploading Date
Transmission Date