KIRORI LAL Vs. BABU SAINI

JUDGEMENT

(1.) A report under Section 133, Code of Criminal Procedure (hereinafter referred to as the Code,) was made on 8th July. 1977, by Police Station, Pinjore. to the Court of Sub-Divisional Magistrate Kalka, alleging that the petitioner, Kishori Lal, had obstructed the thoroughfare and it was prayed that this obstruction be got removed. Notice of this report was issued by the Magistrate to Kishori Lal who replied that the disputed site is not a thoroughfare but on the other hand it belongs to him. The Magistrate proceeded under Section 138 of the Code. He recorded the evidence of the parties and also made a personal inspection of the spot. Thereafter, he passed the impugned order dated 24th January 1983, directing Kishori Lal to demolish the wall constructed by him on the thoroughfare within a period of one month. Against this order, the instant revision has been filed by the petitioner.

(2.) The legality of the impugned order has been questioned on the ground that on account of the inspection of spot made by the Magistrate, the trial stood vitiated. This contention is well founded and therefore, must be accepted. A similar situation arose in Ram Dular v. State of U.P. and others, and it was contended that there is no provision in law for the Magistrate to have made a personal local inspection in the proceedings initiated under Section 133 of the Code and the fact that the Magistrate had inspected the spot Vitiated the trial. This view was accepted and it was held that Section 139 of the Code only empowers a Magistrate conducting an inquiry .under Section 137 or 138 of the Code to direct a local investigation to be made by a person whom he considers fit. Under Section 140 of the Code, the Magistrate has to furnish such person with such written instructions as may seem necessary for his guidance. Thereafter such person has to proceed to the spot and submit his report which is to be read in evidence. It was observed that from these provisions it becomes clear that on principles of natural justice both parties will have a right to file objections to the report of such local inspection which would be decided by the Magistrate himself while conducting the inquiry under Section 138 of the Code. There is no provision in Chapter X of the Code empowering the Magistrate to conduct such an inspection himself. It was held that Sections 133 to 143 of the Code lay down complete procedure which has to be followed by the Magistrate while conducting cases of public nuisance for the purpose of maintaining public order and tranquility and these sections do not authorise a Magistrate to conduct a personal inquiry. It was consequently found that an illegality had been committed by the Magistrate in his decision which was influenced by his personal inspection. Taking this view, the order of the Magistrate directing removal of obstruction was quashed. This judgment, in my opinion, lays down correct law and it is manifest that by inspecting the spot himself the trial Magistrate acted illegally and thereby passed an unsustainable order.

(3.) The learned respondents counsel contended that this case be remanded for redecision on consideration of the other evidence produced by the parties and by ignoring the spot inspection made by the Magistrate. Normally, this would be the correct procedure to be adopted. However, in the present case the proceedings under Section 133 of the Code started on 8th July, 1977, while the impugned order was passed by the Magistrate on 24th January, 1983. After such a long lapse of time it does not appear to be in the interest of justice to remand the case for redecision. The learned respondents counsel very fairly conceded that during this long intervening period the petitioner had once demolished the obstruction made by him although he again made fresh obstruction which, according to him, is present at the spot. It is, therefore, quite clear that the obstruction regarding which the police had initiated the proceedings under Section 133 of the Code is no longer in existence. On the new obstruction, allegedly made by the petitioner, a fresh cause of action has arisen to the aggrieved party and there appears to be no justification to remand the present case for a fresh decision on the report made by the police in July, 1977.