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Rakesh Kumar alias Lal and Others vs State of U.P. and Another

Allahabad High Court · Decided on 2 February 1993 · Citation: (1994) CriLJ 289

HON’BLE JUDGES
A.B. Srivastava, J
ACTS & SECTIONS REFERRED
Criminal Procedure Code, 1973 (CrPC) — Section 133, 145, 482
RESULT
Dismissed
CASE NUMBER
Criminal Miscellaneous Application No. 2025 of 1993
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Judgment

7 paragraphs · 348 words

A.B. Srivastava, J.—Heard the learned Counsel for the parties and perused the materials placed on record.

2.

The applicants against whom a conditional order has been passed and notice issued for proceedings u/s 133, Cr.P.C. have sought u/s 482 of the Cr.P.C. quashing thereof and also of the order passed by the Sessions Judge rejecting the applicants revision.

3.

On report of the police about alleged nuisance in a public way by the applicants, conditioned order was passed by the Magistrate and the applicants directed to show cause. Instead of filing objections before the Magistrate the applicants filed a revision before the Sessions Judge who rejected the same on the ground that the applicants had alternative remedy of a seeking cancellation of the notice by filing objections.

4.

Recourse to Section 482, Cr.P.C. is not permissible to a party who has already availed the remedy of revision before the Court of Session or the High Court, in view of the law laid down by the Supreme Court in Rajan Kumar Manchanda v. State of Karnataka 1988 ACC 54.

5.

The contention that on account of a Civil Suit being pending, the proceedings u/s 133, Cr.P.C. is not competent, is also not correct because the purpose of proceedings u/s 133, Cr.P.C. is to remove obstruction, or nuisance, in a public place. The plea of denial of public right is open to be taken by the applicants before the Magistrate and if so done, he will be bound to hold an enquiry. If he finds reliable evidence in support of denial, shall stay the proceedings till the existence of such right has been decided by a competent court.

6.

Jhummamal alias Devandas Vs. State of Madhya Pradesh and Others, , relied on by the applicants do not help in the matter as they prohibit parallel proceedings u/s 145, Cr.P.C. while a Civil Suit about the same matter is pending. Nature of proceedings u/s 133, Cr.P.C. however is quite different than one u/s 145, Cr.P.C.

7.

For these above reasons, therefore, the application u/s 482, Cr.P.C. is hereby rejected in limine.