B.C.Jauhari - (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. I have heard the learned counsel for the parties at great length and feel that this revision must be allowed and the order of the learned Sessions Judge must be set aside. The order of the learned Sessions Judge raises a question of law of some importance. The learned Sessions Judge replying on the case of Ram Dular v. State of U. P., 1980 AWC 325 held that the Magistrate had no power to make a local inspection in a case under section 133 CrPC and if he does so and his decision is influenced by such local inspection, then the decision is bad in law. The short point, therefore, that arises in this revision is, as to whether in proceedings under section 133 CrPC the Magistrate has power to make a local inspection himself. I have very carefully read the ruling reported in 1980 AWC 325 (supra) and with the greatest respect to the Judge, I feel that the decision did not take into consideration the provisions of Section 310 CrPC, In the decision it was said that Sections 133 to 138 CrPC lay down the complete procedure which has to be followed by the Magistrate in proceedings under section 133 CrPC and since there is no power given to the Magistrate in these sections of the Code, the Magistrate exceeds his powers if he does indulge in an inspection of the locality. In this ruling reference was made to the fact that the Magistrate if he considers it necessary, may also depute a suitable person to make a requisite requisition in accordance with law. It appears that the provisions of Section 310 CrPC were not brought to the notice of the Honourable Judge who decided the case. Section 310 CrPC lays down as below :- "310. Local inspection.-(1) Any Judge or Magistrate may, at any stage of any inquiry, trial or other proceedings, after due notice to the parties, visit and inspect any place in which an offence is alleged to have been committed, or any other place which it is in his opinion necessary to view for the purpose of properly appreciating the evidence given at such inquiry or trial, and shall without unnecessary delay record a memorandum of any relevant facts observed at such inspection. (2) Such memorandum shall form part of tie record of the case and if the prosecutor, complainant or accused or any other party to the case, so desires, a copy of the memorandum shall be furnished to him free of costs." It would appear that the provisions of this section by its very terms clearly apply to inquiries, trials and other proceedings. This power to make a local inspection however, is hedged by the provisions of giving due notice to the parties and to prepare a memorandum of relevant facts observed at such inspection. There is a further provision that a copy of the memorandum has to be furnished to the parties free of costs. This section is contained in the Chapter XXIV which relates to general provisions as to inquiries and trials. If a narrow interpretation is taken that sections 133 to 138 prescribed the complete code for proceedings under section 133 CrPC, then very many difficulties would follow. For example, there is no provision for adjournment in these sections and other contingencies may also arise where the matter cannot be adjudicated by merely remaining hide bond within the four corners of sections 133 to 138. The proceedings under section 133 CrPC are taken with a view to removal of obstructions to public way etc. which amount to a nuisance. These proceedings are to be taken speedily in order to avoid inconvenience and it is also in the public interest to deal with them as expeditiously as possible. Apart from the evidence a local inspection done with a view to appreciate the evidence and to see the locality on the spot would be the best method of coming to the conclusion whether an obstruction does amount to nuisance so as to merit its removal immediately.
(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. Having considered the matter I feel that the order of the learned Sessions Judge must be set aside and the order of the Magistrate dated 30-8-80 be restored.;