VISHWANATH LAL Vs. PRABHU DAYAL GUPTA

JUDGEMENT

(1.) V. N. Mehrotra, J. This revision has been filed against the order dated 1-3-1993 by the Additional City Magistrate I, Allahabad under Section 137 Criminal Procedure Code.

(2.) THE facts, in brief, are that the opposite party Prabhu Dayal Gupta moved an application under Section 133, Cr. P. C. with the assertion that the building in question was in a dilapidated condition and was likely to fall down and was also likely to cause damage to the persona residing in the neighborhood and the passersby. THE learned Magistrate called report from the police and also from City Engineer, Nagar Mahapalika, Allahabad. After the receipt of these reports the learned Magistrate initiated the proceedings under Section 133, Cr. P. C. and issued notices to the opposite parties, who are the present revisionists. Initially the proceedings under Section 133, Cr. P. C. were dismissed by the learned Magistrate but the applicant filed revision which was allowed by the Sessions Court and the case was sent back to the Magistrate concerned for fresh hearing. In reply to the notice under Section 133, Cr. P. C. the opposite parties filed their objections. THEy also, in their statements, denied the existence of any public right. THEreafter the Magistrate recorded the evidence produced by the opposite parties in report of the denial. THE learned Magis trate after considering the evidence produced by the opposite parties came to the conclusion that there was a case of public nuisance and the proceedings cannot be dropped. On these findings he directed the parties to lead their evidence under Section 133, Cr. P. C. In this revision it has been contended on behalf of the revisionist that sufficient evidence has been led before the Magistrate in support of the plea of denial but the learned Magistrate has wrongly rejected that evidence. It has also been contended that the learned Magistrate has assessed and weighed the evidence as if he was finally deciding the matter, instead of finding as to whether there was any reliable evidence in support of the denial.

(3.) IN the case Ram Pratap v. Ram Awart 1982 ALJ 1002, it was held by this court. "whether any place is a public place or a private place is ordinarily a matter within the ambit of civil jurisdiction, on consideration of certain public places and convenience a remedy under Section 133, Cr. P. C. has been provided to meet certain ugly situation" and at the same time when such matter has been brought under the ambit of the criminal jurisdiction the Legislature has taken care to safeguard of the right of the party concerned to a certain extent, with that object in view it has been provided under Section 137, Cr. P. C. (New) corresponding to Section 139-A, Cr. P. C, (old) that the opposite side will be afforded an ex-perte opportunity to give evidence in support of his denial of the existence of such public right as has been set up, if on enquiry the Magistrate finds that there is any reliable evidence in support of such denial, he shall stay the proceedings until the matter of existence of such right has been decided by a competent civil court". This matter had earlier come for consideration before a Division Bench of this court in the case Anand Kishore v. State, 1974 ALJ 539, several earlier decisions of this court in the cases Haji Sultan Ahmad v. State, 1964 ALJ 71, Tirkha v. State, 1965 ALJ 241 and Asmani Prasad v. Kamla, 1988 ALJ 464 were relied upon by their lordships. It was held by their Lordships that if in the enquiry conducted by the Magistrate the person concerned adduces reliable evidence in support, of bis denial, the Magistrate shall stay the proceedings until the exis tence of such right has been decided by the competent civil court. The law does not contemplate that in conducting the enquiry the Magistrate should allow the rival parties to lead evidence in support of their respective claim. He is required only to find out that there is some reliable evidence in support of the claim of the person against whom the order under Section 138, Criminal Procedure Code was made. If the Magistrate embarks on a detailed investigation of the rights of the contending parties, he travels beyond the jurisdiction vested in him and his order in such a case would be incompetent and invalid.