SOHAN LAL Vs. STATE OF U P

JUDGEMENT

(1.) PALOK Basu, J. The question involved in this case is that what should be the ap propriate stage when an order under Sec. 142, Cr. P. C. can be passed in a proceeding under Section 133, Cr. P. C. 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 Maharshi Dayanand Arya Kanya Junior High School were existing. This application appears to have been moved sometimes 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 peace. Therefore, proceedings under Section 133, Cr. P. C. are recommended. On the basis of this police report the Sub-Divisional Magistrate issued a preliminary or condi tional order under Section 133, Cr. P. C. asking the applicants to show cause within a week or remove the garbage pit. Detailed objections were taken by th applicants on 26. 12. 1988. At this, since there was a denial of the existence of public pathway 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 under Sec tion 133, Cr. P. C. filed a suit for declaration and injunction against several persons claim ing 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 chronology of the events, in these proceedings the applicants produced Sohan Pal, Sukh Pal, Rajvir Singh and Tejpal. One Chhotan was also examined who according to the Magistrate, was an independent per son. When all this had happened one application under Section 142 (1) of the Cr. P. C. appears to have been moved by one Swami Ishanand Sarswati 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 Sec. 142 (1) Cr. P. C. should be passed and again several witnesses were examined. It was specifically emphasized before the Magistrate that the proceedings under Section 133 Cr. P. C. themselves should stay be cause of the tendency of the Civil Suit and that there was absolutely neither need nor justification to pass any order under Section 142 (i) of the Cr. P. C. By the impugned order dated 1. 6. 89 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 15-6-89 and failure to comply with the order shall entail prosecution under Section 188 I. P. C. The applicants filed a revision against the said order before the Ses sions Judge Meerut "which was dismissed on 5. 12. 89, hence this application under Section 482 Cr. P. C. Sri S. S. Tyagi, learned counsel for. the applicants has advanced primarily two arguments as noted above firstly, that the proceedings under Sec. 133 Cr. P. C. themselves were illegal and unwarranted and, secondly, in any case, there was no basis whatsoever for the order under Section 142 Cr. P. C. and that in the garb of the impugned order, the Magistrate apparently has decided the question of ownership also without concluding the proceedings under Sectionl33 Cr. P. C. Sri T. Rathore learned Counsel appearing for the other side has raised preliminary objection that this application under Section 482 Cr. P. C. is not maintainable, in view of the Full Bench decision of this Court reported in 1989, A. L. J. page 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 under Section 142 Cr. P. C. this Court should not interfere with the said discretion.

(2.) IN so far as the raising of the preliminary objection is concerned, Sri Tyagi states that without going into the technicalities, the present application under Section 482 Cr. P. C. 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 under Section 482 Cr. P. C. is being treated as Writ petition and is decided accordingly. The very nature of the proceedings under Section 133 Cr. P. C. 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 have been laid down but those matters should not detain this case nor requires a detailed reference for the simple reason 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 under Section 142 Cr. P. C. The language of Sec. 142 Cr. P. C. 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 under Section 142 Cr. P. C. in a given case but certainly not the repetition of the sole allegations should justify an order under Section 142 Cr. P. C. which is the subject matter of the inquiry under Section 133 Cr. P. C. itself. Therefore, it must be held that the Magistrate has exceeded his jurisdiction in exercising the powers under Section 142 Cr. P. C.

(3.) IN view of the observations made above, this application succeeds and is allowed. The order of the Sub-Divisional Magistrate dated 1. 6. 89 and that of the Special Judge dated 5. 12. 89 are quashed. The Magistrate is directed to continue the proceedings as expeditiously as possible keeping in view the directions made above. INterim order dated 19. 1. 1990 is vacated. Application allowed. .