SUKH LAL Vs. BRIJ BASI LAL

JUDGEMENT

(1.) DR. Brij Basi moved an application under section 133 CrPC against Sukh Lal and others for removal of the unauthorised constructions (temporary shops with bamboo walls) alleged to have been made by them which obstructed the public way in mohalla Ramnagar, Orai town. A report was called by the Magistrate. A conditional order was passed and notices were issued on 30th March, 72 requiring Sukh Lal and others to remove the constructions or to show cause. In compliance thereto, the opposite parties filed their objections and they denied the public-rights. It was claimed that the disputed constructions had been in existence for about 30 years and no objection was ever raised earlier. It is also denied that the land belonged to the Public Works Department (P.W.D.). The Magistrate embarked upon an inquiry under section 133 (a) CrPC. He was of the view that the objections filed by the opp. parties were not well-founded. He, thereafter proceeded under section 137 CrPC. The evidence was recorded. On a consideration thereof, the Magistrate was of the opinion that the land in suit over which the shops had been built was the property of the Public Works Department and that the said 'constructions had caused obstruction and nuisance to the smooth passage of public vehicles and pedestrians. In view of this finding, he made the conditional order dated 30th March, 72, absolute. The Magistrate, thereafter passed an order on 12th November, 1973, directing the opp. parties to remove the obstructions or to expose themselves to penalty under section 188 CrPC and 140 (2) CrPC. at appears that on 12th April, 1972, an application was filed by the opp. parties for the appointment of a jury under section 135 CrPC. That application has remained undisposed off even till today. Aggrieved by the order of the Magistrate dated 12th November, 73, a revision was filed before 'the Sessions Judge, Orai, who has made the instant reference to this court.

(2.) I have heard the learned counsel for the parties, and have also perused the referring order. The first ground on which the reference has been made is that when an application for the appointment of jury was made on 12th April, 1972, under section 135 CrPC by the opp. parties, it was the mandatory duty of the Magistrate to appoint a jury. In my opinion, the Sessions Judge has not correctly interpreted the law in this connection. Section 135 CrPC runs an follows :-

(3.) RELYING upon the Allahabad case, the same view has also been expressed by the Himanchal Pradesh High Court in 1973 CrLJ 1375. It has been observed by a single Judge of that court that