Sohan Lal and Others vs State of U.P.

Palok Basu, J.—The question involved in this case is - what should be the appropriate stage when an order u/s 142 Code of Criminal Procedure can be passed in a proceeding u/s 133 Code of Criminal Procedure. Residents of village Patholi made an application before the Sub-Divisional Magistrate Sardhana, District Meerut that the applicants were creating nuisance in a plot bearing No. 603 in the Revenue records, over which a Shiv Mandir and Maharshl Dayanand Arya Kanya Junior High School were existing. This application appears to have been moved sometime in the earlier part of the year 1988. The police report was called for and by its report dated 25-11-1988 the police said that the Shiv Mandir situate in plot No. 603 was a public property inasmuch as the School was also situate on it. Sohan Pal and others have constructed their garbage pit (Kurhi) as a result of which filth and dirt and nuisance is spreading. There were chances of the breach of piece. Therefore, proceedings u/s 133 Code of Criminal Procedure are recommended. On the basis of this police report the Sub Divisional Magistrate issued a preliminary or conditional order u/s 133 Code of Criminal Procedure asking the applicants to show cause within a week or remove the garbage pit. Detailed objections were taken by the applicants on 26-12-1988. At this, since there was a denial of the existence of public path-way or public property, the applicants were permitted to lead evidence. At this stage, it may be relevant to point out that the applicant had, before the initiation of the proceedings u/s 133 Code of Criminal Procedure filed a suit for declaration and injuction against several persons claiming that the Defendant should be restrained from interfering with the possession of the Plaintiff. The said injunction had been granted by the Munsif Magistrate and that too prior to the present proceedings. To complete the clioronology of the events, in these proceedings the applicants produced Sohan Pal, Sukhpal Rajvir Singh and Taj Pal. Once Chhotan was also examined who according to the Magistrate, was an independent person. When all this had happened one application u/s 142(1) of the Code of Criminal Procedure appears to have been moved by one Swami Ishanand Saraswati saying that if immediate steps are not taken, the health of the students in the school will fall into jeopardy, and, therefore, an injunction pending inquiry should be issued. From the order of the Magistrate it appears that an opportunity to the applicants was thought to be given in rebuttal of the prayer that emergency order under 142(1) Code of Criminal Procedure should be passed and again several witnesses were examined. It was specifically emphasized before the Magistrate that the proceedings u/s 133 Code of Criminal Procedure themselves should stay because of the pendency of the civil suit and that there was absolutely neither need nor justification to pass any order u/s 142(1) of the Code of Criminal Procedure. By the impugned order dated 1-6-1989 the Sub Divisional Magistrate passed an order asking the applicants to remove the garbage pit within 15 days and inform the Sub Divisional Magistrate in writing by 15-6-1989 and failure to comply with the order shall entail prosecution u/s 188 IPC. The applicants filed a revision against the said order before the Sessions Judge Meerut which was dismissed on 5-12-1989, hence this application u/s 482 Code of Criminal Procedure. Sri S.S. Tyagi learned Counsel for the applicants has advanced primarily two arguments as noted above - firstly, that the proceedings u/s 133 Code of Criminal Procedure themselves were illegal and unwarranted and, secondly, in any case, there was no basis whatsoever for the order u/s 142 Code of Criminal Procedure and that in the garb of the impugned order, the Magistrate apparently has decided the question of ownership also without concluding the proceedings u/s 133 Code of Criminal Procedure. Sri T. Rathore learned Counsel appearing for the other side has raised preliminary objection that this application u/s 482 Code of Criminal Procedure is not maintainable, in view of the Full Bench decision of this Court reported in 1989 ALJ 732. The other argument of Sri Rathore was on merits. He says that once the Magistrate has thought the matter to be fit for an order u/s 142 Code of Criminal Procedure this Court should not interfere with the said discretion.

In so far as the raising of the preliminary objection is concerned, Sri Tyagi states that without going into the technicalities, the present application u/s 482 Code of Criminal Procedure may itself be treated as a writ petition because that is a constitutional remedy and no technicality should stop that constitutional right. He has made statement of paying court fees within 24 hours. Under the circumstances, this petition u/s 482 Code of Criminal Procedure is being treated as writ petition and is decided accordingly. The very nature of the proceedings u/s 133 Code of Criminal Procedure indicates the two stages in it one where there is denial of a public right and the other there is no such denial but the construction or obstruction is denied. Two sets of procedure has been laid down but those matters should not detain this case nor requires a detailed reference for the simple reasons that in the instant case according to the order of the Magistrate, there was a complete denial of public right on the land being a land of user by the general public. Consequently, evidence was permitted to be led by the applicants and enough time had already elapsed since the preliminary order and the impugned order. One does not get any Idea as to what was the urgency so as to embark upon the powers conferred u/s 142 Code of Criminal Procedure. The language of 142 Code of Criminal Procedure makes it clear that it has to be used only where "immediate measures should be taken to prevent imminent danger or injury of a serious kind to the public." Admittedly, years have rolled on since the applicants had been using the plot in dispute by constructing or digging a garbage pit. Once the right of the public was denied and evidence was being recorded, some special event may justify an order u/s 142 Code of Criminal Procedure in a given case but certainly not the repetition the sole allegations should justify an order u/s 142 Code of Criminal Procedure which is the subject matter of the inquiry u/s 133 Code of Criminal Procedure itself. Therefore, it must be held that the Magistrate has exceeded his jurisdiction in exercising the powers u/s 142 Code of Criminal Procedure.

The aforesaid observation, is however not the end of the matter. Even though it is held that on the facts and circumstances of the present case there was no need or justification to pass on order u/s 142 Code of Criminal Procedure. Yet the Magistrate ought to have decided the proceedings (sic) a much faster pace so that the parties could have come to know their position. It goes without saying that in the event of his reaching to a conclusion that there was sufficient evidence in denial of public path-way or public user, he shall have to stay the proceedings u/s 133 Code of Criminal Procedure itself. Only when he records a finding of fact otherwise that he may direct the removal of the obstruction. Therefore, it is hereby directed that the Sub Divisional Magistrate concerned will do well to comply the proceedings u/s 133 Code of Criminal Procedure within a period of 6 months unless possible from the date on which a certified copy of this order is produced before him.

The observations made above have been necessitated in order to find justifiability of the impugned order u/s 142 and shall not be used by either parties in order to lend support to their case in the proceedings u/s 133 Code of Criminal Procedure.

In view of the observations made above, this application succeeds and is allowed. The order of the Sub Divisional Magistrate dated 1st June 1989 and that of the Special Judge dated 5th December 1989 are quashed. The Magistrate is directed to continue the proceedings as expeditiously as possible keeping the directions made above. Interim order dated 19-1-1990 is vacated.