Rama Shanker Shukla and Others vs State of U.P. and Another

V.P. Mathur, J.—This petition u/s 482 Code of Criminal Procedure is directed against an order passed by the Sub Divisional Magistrate, Rasra, district Ballia, on 1-5-1981 whereby on the basis of a personal inquiry made by him by visit of the place of occurrence, he came to the conclusion that there was sufficient evidence in support of the denial of encroachment upon a public way and on that basis he passed a final order dropping the proceedings completely. A revision against this order was moved before the IVth, Additional Sessions Judge, Ballia, which Court was presided over by Mr. A.K. Agarwal and he by his order dated 14-10-81 dismissed the revision and up-held the order of the learned Magistrate.

The brief facts of the matter are that in May, 1979 on the basis of a police report the Sub Divisional Magistrate, Rasra, passed an order purporting to be u/s 133 Code of Criminal Procedure. This order was directed against opposite party Maheshwari Singh in respect of the construction of his house. Maheshwari Singh appeared in compliance with the notice served on him and denied the existence of any public path at the spot. The learned Magistrate then in view of Section 137(1) of the Code of Criminal Procedure directed the Naib Tahsildar to go on the spot and submit his report. This report was duly submitted and the Naib Tahsildar was of the view that the public Rasta was being encroached upon. Alongwith the report he also submitted a map. Then the learned Magistrate heard parties'' argument, and apparently not agreeing with the report of the Naib Tehsildar he decided to make a local inspection. After informing the parties of the date fixed by him and in their presence he made a local inspection on 28-4-81. By way of a memorandum he submitted a map of the place and his conclusion was that the constructions of Maheshwari Singh did not lie on any public path. It is also clear that signatures of the parties were obtained on the site plan which he had prepared. Thereafter the learned Magistrate dropped the proceedings completely.

My attention is drawn to a judgment of this Court in the matter of Ram Dular Vs. State of U.P. and Others, wherein it has been held that Sections 133 to 143 of the Code of Criminal Procedure lay down the complete procedure to be followed in the cases relating to public nuisance for the purpose of maintaining public peace and tranquility and that none of the sections referred to above authorises the Magistrate to make a local inspection which, if he makes, being against the provisions of law will have no validity.

I regret, I have to differ with this view. The Court while disposing of the case of Ram Dular (supra) did not consider the general provisions of the Code of Criminal Procedure and especially the provisions of Section 310 of the Code of Criminal Procedure which clearly authorises a Magistrate at any stage of the inquiry, or trial, or any other proceeding when he feels that in his opinion it is necessary for the purpose of proper appreciation of the evidence, to make a local inspection himself. A perusal of Section 139 of the Code of Criminal Procedure also shows that it authorises the Magistrate to direct local inspection and the word used is ''may'' and not ''shall''. Therefore, according to Section 139, it may be the discretion of the Magistrate to direct a local inspection to be made by a person whom he thinks fit or summon or examine an expert. It will however, not exclude his power to make a local inspection by him which power is ensured to him by Section 310 of the Criminal Procedure Code.

In the matter of Chheda v. Padmakar 1984 ACR 264, another Single Judge of this Court also took the view that in the proceedings u/s 133, in view of the provisions of Section 310 the Magistrate has power to make local inspection. The case of Ram Dular (Supra) was considered in that case and it was held that the provisions of Section 310 of the Code of Criminal Procedure were not brought to the notice of the Hon''ble Judge who decided the case of Ram Dular.

A Division Bench was constituted specifically to look into the decision in the case of Ram Dular v. State of U.P. and others and its conclusions are reported in 1983 AWC 402, Satya Prakash v. State of U.P. with reference to Sections 133 to 143, which deal with the public nuisance, it was observed that these Sections have to be strictly given effect to only so far as they go. They do not exhaust the entire gamut of procedure which may have to be adopted in justly disposing of a case of public nuisance. Neither Section 310 which embodies the general powers contains any proviso nor is there any prohibition in Chapter X which may restrict the generality contained in Section 310. The law laid down in Ram Dular''s case was held not to have been correctly enunciated and the, case not having been decided according to law. This is the legal position.

The learned Sessions Judge was justified in holding that the learned Magistrate was within his powers and jurisdiction to go on spot and make inspection and that the map which he has placed on record amounted to a memorandum. That being so, he could take his own inspection as a basis to decide the matter u/s 137 Code of Criminal Procedure.

This provision of law, however, lays down that if the Magistrate finds that there is any reliable evidence in support of the denial, then he has to stay the proceedings. In view of the inspection made by him, he accepted Maheshwari Singh''s contention and held that there was reliable evidence in support of the denial of the existence of any public way and of construction over it. That being so, be could only stay the proceedings till such time that the matter of existence of such a right was decided by a competent Court. He could not dispose of the matter finally one way or the other. To this extent I, therefore, find the order of the Magistrate defective.

This petition is accordingly allowed in part. The order of the learned Magistrate as confirmed by the learned Sessions Judge shall stand to the extent that the proceedings shall remain stayed in his Court and will be deemed not to have terminated by a final order. The parties shall be free to agitate the matter before the competent Court and obtain a judgment in this respect as contemplated by Sub-section (2) of Section 137 of the Criminal Procedure Code.