RAVI SHANKER Vs. SIYARAM

JUDGEMENT

(1.) THE applicant has come forward with a prayer to quash the proceedings in Case No. 1 of 1979, Siya Ram and others v. Ravi Shanker, under Section 133, Cr. P. C. pending in the Court of Sub -Divisional Magistrate, Oral.

(2.) IT would appear that proceedings were initiated on the application of opposite parties 1 to 4, maintaining that the land involved is a drain and the applicant has obstructed the same. The applicant filed a written statement. That written statement has been annexed with the counter -affidavit. In para 15 of the affidavit, filed in support of the application, it was alleged that the Magistrate without having any resort to procedure contemplated under Section 137, Cr. P. C., started enquiry under Section 138, Cr. P. C. In reply to the same, as per pars 16 of the counter -affidavit, it was stated that since there was no denial of existence of public right by the applicant, the learned Magistrate was right and justified in straightway proceeding under Section 138, Cr. P. C., ignoring the procedure laid down under Section 137, Cr. P. C. Thus, it is a common ground that the procedure laid down under Section 137, Cr. P. C. has been bye -passed and the Magistrate has straightway proceeded under Section 138, Cr. P. C.

(3.) IT was next urged that in any case the matter is a mere technicality and this Court would not interfere. Reliance in support of such argument was placed by the learned counsel for the opposite parties upon the case of Rasamayee v. Nakul, 1972 Cri LJ 936 (Assam and Nagaland). I fell that actually if that view is adopted, it would nullify the provision of Section 137, Criminal Procedure Code. The Court cannot question the wisdom of legislature, when any provision has expressly been laid down also providing for stay of proceedings and inviting decisions by Civil Court in certain situation, such procedure has got to be followed. Similar view was taken in the case of S.P. Trivedi v. State of U. P. (AIR 1954 All 203) : (1954 Cri LJ 432) concerning old Section 139 -A, Cr. P. C. corresponding to present Section 137, Cr.P. C. Reliance was also placed by the Counsel for the opposite parties upon the case of Bansidhar Marwari v. P. W. D., Bihar (AIR 1943 Pat 3) : (1942 -43 Cri LJ 923) relying upon the earlier Patna view. In that case there was an omission upon the part of the Magistrate to put a question under Section 139 -A, old Cr. P. C., while in the position, the Magistrate must observe the procedure laid down under Section 137 (2), Cr. P. C. instead of by passing it and proceeding under Section 138, Cr. P. C. straightway.