CHHEDA Vs. PADMAKAR TRIPATHI

JUDGEMENT

(1.) THIS criminal revision has been filed against the order dated 25-6-1981 passed by the II Additional Sessions Judge, Lucknow in Criminal Revision No. 18 of 1981. The Sessions Judge has set aside the judgment and order dated 30-8-80 passed by the Additional City Magistrate, Lucknow in Case No. 37/38A/80 State v. Chheda under section 133 CrPC P. S. Mahanagar and has remanded the case for decision by some other Magistrate.

(2.) IT appears that proceedings under section 133 CrPC started on an application moved by the opposite-party no.1 on the allegations that revisionist Chheda was obstructing the public way toy raising construction. On notice being issued against the revisionist he appeared and denied the existence of the right of way and contended that he was raising constructions over his own land. Evidence in support of the denial was recorded and a local inspection was also made by the Magistrate. The Magistrate came to the conclusion that the constructions were not raised on the public way and accordingly he dropped the proceedings. Opposite Party no. 1 to this revision thereafter filed revision before the District Judge and the revision was allowed and the case remanded with the direction that a specific finding should be recorded whether there was reliable evidence in support of denial of public right ana further if there was reliable evidence, then the proceedings have to be stayed until the matter was decided by a competent court. But they could not be dropped. After the remand of the case the learned Magistrate again held that there was reliable evidence in support of the denial of the existence of right of way and accordingly the Magistrate stayed the proceedings till such time as the matter was decided by the competent court. A second revision was filed and the order impugned under this revision was passed by the II Additional Sessions Judge, Lucknow again remanding the same for decision by the Magistrate other than the one who decided the case.

(3.) THE learned counsel for the opposite-party urged that the provision of Section 310 CrPC do not apply to proceedings under section 133 CrPC for which a limited procedure is prescribed under sections 133 to 138 CrPC. I have already dealt with this argument above and have held that section 310 CrPC applies to all inquiries, trials and proceedings and proceedings under section 133 CrPC would not be excepted from its application. THE argument that section 310 CrPC deals with a larger area and since a smaller area has been carved out which is contained in sections 133 to 138 CrPC these provisions shall prevail over the law giving power to the larger area does not appeal to me and I am afraid I do not agree to this reasoning.