M.Wahajuddin - (1.) ;- The tendency to run upto this Court for invoking powers under Section 482, CrPC is not to he encouraged. Besides, when the express remedy is provided, it is always desirable to first avail of that remedy and it has been laid down in the case of Ramji v. State, 1978 ACrR 238 that where an order is passed under section 133 (1, CrPC and remedy of revision has not been availed, the petition under Sec. 482 CrPC is not to be entertained and has to be rejected.
(2.) IT is also necessary to observe that law has to be applied to the facts of the case. Legislature itself was conscious that any party should not be harassed by a resort to summary proceedings. For that object in view the Legislature provided a unique procedure contained in section 137 CrPC. The person to whom the notice is served is given an opportunity of denial and is further afforded another unique opportunity to lead ex parte evidence ; and if from such evidence the Magistrate is satisfied that there is some reliable evidence in support of denial, he has to stay the proceedings directing the parties to have the matter determined by the civil court. In the circumstances it was in the fitness of things that the applicant should have filed his written statement, contesting the notice and denying the right, if it is denied, and lead evidence. Of course, if thereafter the Magistrate rejects the plea and further proceeds under section 138, CrPC the party could well come to superior court for redress of grievances. The facts atleast set up by the person, aggrieved from the notice, before the Magistrate would be known and would rather help the superior court to give any relief. In view of my aforesaid view, I would not express any further opinion in the matter and at present the application under Section 482, CrPC is rejected. The stay order is vacated. --- Application rejected.;