S.K. Jain, J. - (1.) On an application filed by Ramesh Chandra, Petitioner herein, against Ishwar Din, respondent No. 1 alleging that he was raising illegal construction on the land owned by Public Works Department situated in between G.T. Road and the applicants plot No. 374 thereby causing obstructions in the path leading to his plot from G.T. Road, a report was called for from the Station House Officer, Sarai lnayat, Allahabad. On receipt of the report, conditional order under sub-section (1) of Section 133 Cr.P.C. was passed against Ishwardin who filed a written statement denying the existence of any public path on the land in question. He had taken the stand that the construction was in existence since long and there was no obstruction of public way on account of said construction.
(2.) The learned S.D.M. proceeded to record the evidence of the parties under Section 138 Cr.P.C. The evidence of Ramesh Chandra first party was closed on 18.9.1991 and the case was fixed for the evidence of Ishwardin who instead .of leading his evidence moved an application seeking stay of the proceedings pending disposal of Second appeal No. 881 of 1988 Darshan Lal Bhutani v. State of U.P ). The learned S.D.M. vide his order dated December 5. 1991 dismissed the said application and directed Ishwardin to produce his evidence on 12.12.91. This order was challenged by Ishwardin in criminal revision which was heard and dismissed by III Addl. District & Sessions Judge, Allahabad vide orders dated 29.8.92. On receipt of the case thereafter the Magistrate inspected the spot in the presence of the parties on 13.10.1992 and then after hearing the parties vide his order 17.10.92 dismissed the application of the applicant Ramesh Chandra there-by dropping the proceeding and directed the parties to seek their remedy in the Civil Court. It is that order of October 17, 1992 passed by the S.D.M. Phulpur which has been impugned in this criminal revision petition by Ramesh Chandra.
(3.) The learned counsel for the petitioner has vehemently argued that the learned Magistrate has legally erred in deciding the revision solely on the basis of spot inspection carried out by him. Before proceeding to appreciate the above argument it is expedient to notice the following facts. (1) That proceeding under Section 133 Cr.P.C. were started in the court of S.D.M. Phulpur on the application of Ramesh Chandra against Ishwardin. (ii) That on this application, a report was called for from S.H.O. Sarai lnayat: (iii) That on receipt of the said report conditional order under section 133 (1) Cr. P.C. was passed against Ishwardin, He filed a written statement denying the existence of public path on the land in question. (v) That the learned Magistrate proceeded to record the statement under Section 138 Cr.P.C. (vi) That the evidence of Ramesh Chandra was closed on 18.9.91 whereafter the case was adjourned for statement of Ishwardin on 11.10.91 when Ishwardin filed an application for stay of the proceeding which was rejected on 5.12.91 and the case was ad,journed to 12.1.1992 for recording the evidence of Ishwardin. (vii) That Ishwardin challenged the order dated 5.12.91 in criminal revision before the Sessions Judge who dismissed the same on 29.8.1992. The operative part of his order is reproduced below "The revision is hereby dismissed. Let the record be sent back to the learned Magistrate for further proceeding in the case. Parties are directed to appear before the learned Magistrate on 28.9.1992." On receipt of the case back on remand, the learned Magistrate, instead of proceeding further in the case from the stage where the parties were in on 5.12.91 and directing Ishwardin to lead his evidence inspected the spot himself and dropped the proceeding thereby directing the parties to get the dispute decided by a Civil Court.;