Decided on September 09,1952



- (1.) THIS is a Criminal Revision case which has been filed against an order made under Section 143, Criminal P. C.
(2.) THE facts are: On proceedings which were initiated by petitions under Section 147, Criminal P. C. , but which were taken on file and proceeded with under Sections 133 to 143, Criminal P. C. , Chap. 10 (Public Nuisance) this order under Section 143 came to be made in regard to the putting up of a wall in front of certain shops in Avalurpet village. In the village of Avalurpet there is Grama Natham of the extent of 7 cents adjoining the village and comprised in R. S. 150/1a. On the eastern side of this Grama Natham and inside that Grama Natham there are number of shops belonging to Abdul Sathar Sahib. This village of Avalurpet consists of an overwhelming majority of Hindus and a small minority of Muslims. These Muslims among themselves are divided. The owners of these shops and other shops and supporting this Abdul Sathar Sahib are Muslim householders consisting of ten in number. There can be no dispute that in 1950 feelings between these ten Muslim householders and the Hindu inhabitants had became strained. Therefore what the Hindu respondents did was that they put up a wall practically adjoining the front of these shops and purported to enclose the rest of the Grama Natham and made it into Gandhi Park. On a portion of this Grama Natham a masonry platform has been put up on which a statue of Mahatma Gandhi has been installed and another cement platform has been put up but without anything being erected thereon. The learned Magistrate who enquired into this matter and who inspected this area found that this alleged conversion of the site into a park was nothing more than a mere pretence. He found there no shrubs or flower plants excepting two old rain trees. The only substantial structure was the cement granite wall six feet high put up in front of these shops and practically adjoining it and with a small opening at the place shown in the plan filed in this case. This opening itself was secured by doors and it was locked and the key was with respondent 2. In other words, by constructing this wall the respondents effectively walled-in the shops and cut off all access thereto by the villagers. The result was that the shops remained closed for three months. Only after the Sub-Collector of Tindivanam came to the spot, he opened the door at DE and the shops became accessible through that opening. The narrow passage left between the front of the shops and the wall and the narrow opening let into the wall made the shops, according to the learned Magistrate who inspected the place, to look like cells in a prison enclosed by high prison walls and within the enclosure with very little elbowroom. Therefore Abdul Samad Sahib, one of the shop-keepers therein, filed an application under Section 145, Criminal P. C. , against Annamalai Reddi and two others in the Court of the Sub-Divisional Magistrate, Tindivanam, on 31-1-50. Another application under Sections 144, 147 and 148 was filed by Abdul Sathar Sahib, the undivided brother of that Abdul Samad Sahib, against the same respondents in respect of some other shop there on 3-2-1950. The former application was referred to the Civil Inspector of Police, Gingee, for report. The Circle Inspector who has inspected the place and who has been examined as a prosecution witness testified that he visited the place on 6-2-1950 and submitted his report Ex. P-2 and warned the Hindus not to persist in this course of conduct and that they did not heed his words and that he then visited the spot on 8-3-50 along with the District Superintendent of Police and they found the state of things unaltered and these Muslims shopkeepers put to trouble. Then these proceedings were proceeded with under Section 133 and which it was perfectly competent for the Magistrate to do though the proceedings were presented under Chaps. 11 and 12, Criminal P. C. There is no dispute that the correct procedure prescribed under Sections 133 and 143 had been followed in this case. The learned Magistrate came to the conclusion that the place on which this wall had been constructed is a public place and a public way and that it constitutes an Obstruction and a nuisance and that the public right set up by the respondents is bogus and passed an order for demolition of the same and it is against this order that the present Criminal Revision has been filed.
(3.) IN this case we have to consider four points viz. , (i) whether the wall which has been ordered to be demolished has been put up in a public way or a public place; (ii) whether it constitutes an obstruction and a nuisance; (iii) whether the public right set up by the respondents (in the lower Court) is bogus or bona fide and (iv) whether in a petition under Section 147 the Magistrate can proceed under Chap. 10, Sections 133-143, Criminal P. C.;

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