MANGILAL UDERAM Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This Revision is directed against an order dated 17.6.1999 of Sub-Divisional Magistrate, Choryasi Prant, Surat directing the revisionist to remove pakka compound wall 2 ft. high above the road level on the road side constructed on Block No.992/A situated at village Kosat, Tal. Choryasi, Dist. Surat, within 2 days of the final order.

(2.) Ms.Kalpana J. Brahmbhatt, learned Counsel for the Revisionist and Shri H.H.Patel, learned A.P.P. for the respondents have been heard.

(3.) The contention of Ms.Kalpana Brahmbhatt is that impugned order is liable to be set aside as it is illegal and not in compliance of the provision of Section 133 of Criminal Procedure Code, whereas learned A.P.P. contended that the provisions of Section 133 Cr.P.C. have been duly observed by the learned Sub-Divisional Magistrate hence no interference in the revision is required. I have gone through the impugned order contained in Annexure : G as well as show cause notice contained in Annexure : E. After going through these two documents I am definitely of the opinion that there are serious infirmities and illegality in the procedure adopted by the learned Magistrate. In the show cause notice, Annexure : E, it is clearly mentioned that the Sub-Divisional magistrate, Choryasi had visited the place where objectionable construction was made and in the final order also it is mentioned that the Collector and the same Executive Magistrate Shri C.J.Patel personally visited the place where alleged obstruction to the water channel was caused by the revisionist. Such local investigation, either before issuing show cause notice or during the proceedings u/s.133 Cr.P.C., is unwarranted. The only provision which I could gather for local inspection is u/s.139 Cr.P.C. which provides that the Magistrate may for the purpose of an enquiry u/s.137 or 138 direct local investigation to be made by such person as he thinks fit or summon and examine an expert. This section therefore authorizes a Magistrate acting u/s.133 Cr.P.C. to direct local investigation to be made by such person as he thinks fit. It therefore excludes local investigation or local inspection to be made by the Magistrate himself. Section 139 further empowers such Magistrate to summon and examine an expert who had made local inspection or local investigation. There is no other provision empowering a Magistrate to make local investigation or local inspection at any stage of the proceeding. Since the learned Magistrate himself had personally visited the alleged obstruction to the flow of temporary channel during monsoon season it has violated the provisions of Section 133 Cr.P.C. This Court in MANEKLAL KARSANDAS DAVDA v/s. STATE OF GUJARAT and ANR., reported in 1991 (1) GLR 57, also took similar view that there is no provision in Chapter : X of the Code empowering the Magistrate to conduct such an inspection himself. Since the provisions contained in Sections 133, 138 and 139 Cr.P.C. do not authorize a Magistrate to make local inspection hence an order based on the basis of such local inspection is liable to be set aside.