LAWS(ALL)-1983-1-3

RAM NARAIN SINGH Vs. STATE OF U P

Decided On January 12, 1983
RAM NARAIN SINGH Appellant
V/S
STATE OF UTTAR PRADESH Respondents

JUDGEMENT

(1.) THE applicants have come forward with a prayer for quashing the proceedings pending before the Sub-Divisional Magistrate, Bansdih, District Ballia, in Case No. 76 of 1979, under Section 133, CrPC, State v. Ram Narain and another.

(2.) THE applicant no. 2 is married to the only daughter of applicant no. 1. THE applicant no. 1 has kept applicant no, 2 and his family with him. It is alleged that the residents of the village are unhappy on account of the same. It is, further, alleged that Ambika Singh's father had some dispute with Ram Narain applicant. It is, further, alleged that Ambika Singh [manoeuvred some other residents of the village and a path-way is being claimed between the Sehan of Ambika Singh and others and the house of applicant no. 1 falsely and the proceedings under Section 133, CrPC has been initiated with that objective. It is, further, alleged that the report of the Naib Tahsildar may disclose that no passage has been obstructed by the applicants and no public Rasta exist. It would appear that the Magistrate by a preliminary order issued notices. THE Magistrate further held that the evidence produced by the applicants in support of their denial is not satisfactory, and the applicants submits that the Magistrate is wrongly proceeding under Section 138 CrPC which is an abuse of the process of the Court.

(3.) THE provisions under Sections 145, CrPC and 133, CrPC, conferring certain powers on the Magistrate axe based on public policy and they are independent powers and the mere circumstance that finally the civil court is entitled to decide the title will not stand as as bar to the exercise of such powers as they have under CrPC. In the case of M. S. Sharif v. State of Madras, AIR 1954 SC 397 it was laid down that as between civil and criminal proceedings, the criminal matters should be given precedence. In the case of Shyamji Tikam Das v. Ram Move, AIR 1933 Calcutta 318, it was held that the fact that a civil suit has been instituted is no bar to the proceedings} under Section 133, CrPC. It was further observed that the civil suit may take a long time and the Magistrate is quite competent to decide the matter summarily under the Chapter relating to proceedings under Section 133, CrPC. In the case of Duli v. Emperor, AIR 1929 Alld. 833 it was held that the procedure adopted under Section 133, CrPC and the other linked section is more or less summary in nature and the decision of the Magistrate goes so far as to fix upon the party who should go to the civil court. THE summary nature of the proceedings was emphasised and that aspect is relevant. THE proceedings under Section 133, CrPC having been initiated first, the mere institution of civil suit would not divest the Magistrate of his power to first decide whether there is any reliable evidence in support of denial, and if it holds that it is not so, he will be at liberty to continue the proceedings under Section 138, CrPC and the institution of any suit pending the proceedings under Section 133, CrPC, would not bar his jurisdiction to proceed.