RAFEEQ AHMAD SIDDIQUI Vs. VIJAY SINGH PUNDEER

JUDGEMENT

(1.) The petitioner who is a member of Muslim community has made a complaint before the Sub-Divisional Magistrate, Dehradun under Section 133 of the Criminal Procedure Code, 1973 stating that an unlawful obstruction and nuisance is being created at the hands of private respondent nos. 1 and 2, inasmuch as, they have raised a wall outside the graveyard which makes it difficult for the members of Muslim community to approach the graveyard. The Sub-Divisional Magistrate, Dehradun after hearing both the parties vide its order dated 30.04.2011 has come to the conclusion that the land belongs to "Gram Samaj"?, and the encroachment be removed. Against the said order, the private respondent nos. 1 and 2 moved a revision before the Chief Revenue Commissioner, before whom a plea was raised by the private respondents that between the same parties a civil dispute is pending. The Chief Revenue Commissioner taking this fact into consideration set aside the order dated 30.04.2011 passed by the Sub-Divisional Magistrate, Dehradun vide its order dated 21.05.2011. Aggrieved, the petitioner has filed the present writ petition before this Court.

(2.) It appears that the Chief Revenue Commissioner has not gone into the details of Section 133 of the Criminal Procedure Code, 1973. Section 133 of the Criminal Procedure Code, 1973 reads as under:-

(3.) Sub-section (2) of Section 133 of Criminal Procedure Code, 1973 clearly shows that "no order made by a Magistrate under this section shall be called in question in any civil court"?. This is so because the purpose of Section 133 Criminal Procedure Code, 1973 is entirely different which is to remove an unlawful obstruction or nuisance on public property. Since the alleged nuisance here is on a public property, recourse is possible under Section 133 of CrPC.