LALLAN PD PANDEY Vs. JAGDISH

JUDGEMENT

(1.) THE petitioner had moved an application under Section 133 of the Code of Criminal Procedure complain­ing of obstruction to a public way by the opposite party. It was stated that the op­posite party had constructed a wall on the village pathway which was lawfully used by the public. The Magistrate as well as the learned Sessions Judge have taken the view that although there was a public way and although the petitioner was obstructed by the construction of the wall in the use of the said way yet no order was required. The Magistrate was of the opinion as there was no case of emergency no order was necessary while the Sessions Judge held that there were alternative routes available for the petitioner and, therefore, it was open to him to file a civil suit.

(2.) AGGRIEVED by these orders the petitioner has come to this Court under Section 482 of the Code of Criminal Procedure.

(3.) BOTH the courts below have erred in declining to act under Section 133 on the basis of their respective reasonings. Sec­tions 133 and 143 of the Code of Criminal Procedure deal with removal of public nui­sance. These sections find place in the Code of Criminal Procedure under Chapter X which deals with maintenance of public or­der and tranquility. If any citizen is able to get away with obstruction to any public way or allowed to create a public nuisance with impunity there would be clear danger to maintenance of public order as the per­sons affected by such action would also be inclined to take law in their hands for re­moval of that obstruction or nuisance. Thus, the reason given by the two courts for not acting are clearly wrong. The mere availability of alternative routes is irrelevant. There is also no question of urgency or want of it. So far as cases' of urgency are concerned Section 144 of the Cr.P.C. deals with that situation. Section 133(1) has no­thing to do with urgency.