Ram Narain Singh and Another vs State of U.P.

M. Wahajuddin, J.—The applicants have come forward with a prayer for quashing the proceedings pending before the Sub-Divisional Magistrate, Bansdih, District Ballia, in Case No. 76 of 1979, u/s 133, Code of Criminal Procedure, State v. Ram Narain and Anr.

The applicant No. 2 is married to the only daughter of applicant No. 1. The applicant No. 1 has kept applicant No. 2 and his family with him. It is alleged that the residents of the village are unhappy on account of the same. It is, further, alleged that Ambika Singh''s father had some dispute with Ram Narain applicant. It is, further, alleged that Ambika Singh manoeuvred some other residents of the village and a path-way i6 being claimed between the Sehan of Ambika Singh and others and the house of applicant No. 1 falsely and the proceedings u/s 133, Code of Criminal Procedure has been initiated with that objective. It is, further, alleged that the report of the Naib Tahsildar may disclose that no passage has been obstructed by the applicants and no public Rasta exist. It would appear that the Magistrate by a preliminary order issued notices. The Magistrate further held that the evidence produced by the applicants in support of their denial is not satisfactory, and the applicants submits that the Magistrate is wrongly proceeding u/s 138 Code of Criminal Procedure which is an abuse of the process of the Court.

The stand of the applicants is that one of the complainants figuring as applicant in proceedings Under Section. 133 Code of Criminal Procedure, filed a suit for injunction against the present applicants claiming the land as a passage. This suit was filed during the pendency of the proceedings u/s 133, Code of Criminal Procedure; and when that is the position, the Magistrate should not have proceeded further and stayed the proceedings. The averments regarding the merits of the case u/s 133, Code of Criminal Procedure, are denied by the opposite side.

The main point urged is that once a suit has been filed, proceedings u/s 133, Code of Criminal Procedure could not be continued. Reliance in support of such argument is placed upon the case of Mahabir Singh v. State 1980 AWC 344 The facts of that case are distinguishable. In that case civil suit was filed prior to application u/s 133, Code of Criminal Procedure with respect to some property and the Munsif had directed the maintenance of status quo. It was held that in such situation the provisions of Section 137(2), Code of Criminal Procedure are attracted and the Magistrate should have stayed the proceedings u/s 137(2) Code of Criminal Procedure. In the present case the position is just otherwise. It was the proceedings u/s 133, Code of Criminal Procedure, which was initiated first. The Legislature in its wisdom has conferred certain powers upon the Magistrate to prevent obstruction of public path etc. in the proceedings u/s 133, Code of Criminal Procedure onwards. It is a matter of common knowledge that civil litigation takes much longer time. If the disputed land is really a public path, it will remain obstructed until that civil suit is decided. Perhaps that was one of the consideration which weighed with the Legislature and at the same time adequate safeguards have been provided to the party defending the notice and Section 137(2) Code of Criminal Procedure, has been enacted with that objective providing that if after notice being issued u/s 133, Code of Criminal Procedure, there is denial of public right and there is any reliable evidence in support of such denial, the Magistrate shall stay the proceedings until the matter of existence of such right has been decided by a competent court. The Magistrate has vide its order dated 5-8-80 (Annexure 2) held that there is no reliable evidence in support of the denial of the right. He has held so after considering the materials on records. It is a finding of fact of the Magistrate and it cannot be lightly interfered with in the proceedings u/s 482, Code of Criminal Procedure. In fact, in such proceedings what t he Court will consider is whether the Magistrate has followed the procedure and has not ignored it. The Magistrate has observed the procedure laid down in Section 133, Code of Criminal Procedure onward. When that is the position, it cannot be said that the Magistrate is proceeding u/s 138 Code of Criminal Procedure violating any rules of procedure or denying any right conferred to the applicants.

The provisions Under Sections 145, Code of Criminal Procedure and 133, Code of Criminal Procedure, conferring certain powers on the Magistrate are based on public policy and they are independent powers and the mere circumstance that finally the civil court is entitled to decide the title will not stand as a bar to the exercise of such powers as they have under Code of Criminal Procedure. In.the case of M.S. Sheriff Vs. The State of Madras and Others, it was laid down that as between civil and criminal proceedings, the criminal matters should be given precedence. In the case of Shamji Tricumdas Bhatia and Others Vs. Ram Moye, it was held that the fact that a civil suit has been instituted is no bar to the proceedings u/s 133, Code of Criminal Procedure. It was further observed that the civil suit may take a long time and the Magistrate is quite competent to decide the matter summarily under the Chapter relating to proceedings u/s 133, Code of Criminal Procedure. In the case of Dulichand Vs. Emperor, it was held that the procedure adopted u/s 133, Code of Criminal Procedure and the other linked section is more or less summary in nature and the decision of the Magistrate goes so far as to fix upon the party who should go to the civil court. The summary nature of the proceedings was emphasised and that aspect is relevant. The proceedings u/s 133, Code of Criminal Procedure having been initiated first, the mere institution of civil suit would not divest the Magistrate of his power to first decide whether there is any reliable evidence in support of denial and if it holds that it is not so, he will be at liberty to continue the proceedings u/s 138, Code of Criminal Procedure and the institution of any suit pending the proceedings u/s 133, Code of Criminal Procedure, would not bar his jurisdiction to proceed.

In the result, I do not find it a fit case for exercising any inherent power u/s 482, Code of Criminal Procedure, and the application is rejected.

Application rejected.