RAMA SHANKAR SHUKLA Vs. STATE OF U P

JUDGEMENT

(1.) V. P. Mathur, J. This petition under Section 482, Cr. P. C. is directed against an order passed by the Sub-divisional Magistrate, Rasra, district Ballia, on 1-5-1981 whereby on the basis of a personal inquiry made by him by visit of the place of occurrence, he came to the conclusion that there was sufficient evidence in support of the denial of encroachment upon a public way and on that basis he passed a final order dropping the proceedings completely. A revision against this order was moved before the IV Additional Sessions Judge. Ballia, which court was presided over by Mr. A. K. Agrawal and he by his order dated 14-10-1981 dismissed the revision and up-held the order of the learned Magistrate.

(2.) THE brief facts of the matter are that in May 1979 on the basis of a police report the Sub-divisional Magistrate, Rasra, passed an order purporting to be under Section 133, Cr. P. C. This order was directed against opposite party Maheshwari Singh in respect of the construction of his house, Maheshwari Singh appeared in compliance with the notice served on him and denied the existence of any public path at the spot. THE learned Magistrate then in view of Section 137 (1) of the Code of Criminal Procedure directed the Naib Tehsildar to go on the spot and submit his report. This report was duly submitted and the Naib. Tehsildar was of the view that the public rasta was being encroached upon. Alongwith the report he also submitted a map. THEn the learned Magistrate heard parties' argument, and apparently not agreeing with the report of the Naib Tehsildar he decided to make a local inspection. After informing the parties of the date fixed by him and in their presence he made a local inspection on 28-4-1981. By way of a memorandum he submitted a map of the place and his conclusion was that the constructions of Maheshwari Singh did not lie on any public path. It is also clear that signatures of the parties were obtained on the site plan which he had prepared. THEreafter the learned Magistrate dropped the proceedings completely.

(3.) IN the matter of Chheda v. Padmakar and others, (1984) 21 ACC 239, another Single Judge of this Court also took the view that in the proceedings under Section 133, in view of the provisions of Section 310 the Magistrate has power to make local inspection. The case of Ram Dular (supra) was considered in that case and it was held that the provisions of Section 310 of the Criminal Procedure Code were not brought to the notice of the Hon'ble Judge who decided the case of Ram Dular.