Ram Dayal and Others vs State of U.P. and Others

B.N. Katju, J.—This is an application u/s 482 Code of Criminal Procedure praying that the order of the Sub-Divisional Magistrate, Fatehabad, Agra dated 30-12-1976 and the order of the Sessions Judge, Agra dated 28-2-1977 be quashed.

A preliminary order u/s 133 Code of Criminal Procedure was passed on 22-5-1977 by the Sub-Divisional Magistrate, Fatehabad in which it was stated that he had been informed that the applicants had obstructed a public way of constructing wall and directed the applicants to remove the said obstruction from the public way. It appears that the applicants filed an objection in which they denied the existence of the public way and also stated that they had not placed any obstruction in the public way. The learned Magistrate, by his order dated 23-9-1976, rejected the objection of the applicants denying the existence of the public way. He thereafter directed the Block Development Officer to make a local inspection and to submit his report. The report of the Block Development Officer dated 5-11-1976 shows that he was unable to determine as to whether the applicants had obstructed the public way. It appears that the learned Magistrate relied on the report of the Supervisor Kanoongo which was submitted before the preliminary order u/s 133 Code of Criminal Procedure was passed and without recording any evidence held that the applicants had obstructed the public way and directed the applicants to remove the obstruction from the public way within one month by his order dated 30-12-1976.

A bare reading of the preliminary order dated 22-5-1976 shows that it is defective as it does not give any details regarding the public way with respect to its situation which the applicants are alleged to have obstructed. Even the name of the village where the said public way exists is not mentioned in the aforesaid order. The learned Magistrate has also not recorded any evidence regarding the construction alleged to have been made by the applicants in the enquiry conducted by him u/s 138 Code of Criminal Procedure. He clearly erred in placing reliance on the report of the Supervisor Kanoongo, which was submitted prior to the passing of the preliminary order on 22-5-1976, without recording the evidence of the Supervisor Kanoongo u/s 138 Code of Criminal Procedure and in basing his finding that the applicants had obstructed the public way on the said report. The order of the learned Magistrate dated 30-12-1976 directing the applicants to remove the obstruction from the public way is, therefore, illegal and is liable to be set aside.

This application is accordingly allowed and the order of the Sub-Divisional Magistrate, Fatehabad, Agra dated 30-12-1976 and the order of the Sessions Judge, Agra dated 28-2-1977 passed in revision are set aside.