R.K.Saksena - (1.) THERE is an old temple of Baba Darweshwar Nath in the heart of the city of Allahabad on the Jhonston Ganj Road in Mohalla Jhonston Ganj, Allahabad. On receipt of a report of the police that some 'gumtis' had been erected near the entrance door of the temple and also on the land around the temple used by the public at large for worship of the deities installed in the temple and that these constructions caused obstruction in the public right to perform Puja in the public temple, the City Magistrate, Allahabad, initiated proceedings in April, 1981, under section 133 of the Code of Criminal Procedure (hereinafter referred to as the 'Code') against the petitioner, Rajendra Puri and others, thereby passing a conditional order calling upon them to remove the unlawful obstructions from the public place and the land which was lawfully used by the public. The petitioner entered appearance and on being questioned, he denied the existence of any public right in respect of the disputed place. After an evaluation of the material laid before him, the Magistrate passed an order under section 137 (3) of the Code, observing that there was no reliable evidence in support of the denial. This order was challenged by the petitioner by means of a revision, which was allowed and the case was remanded by this Court with certain observations. Almost identical order was again passed and the petitioner preferred revision but was unsuccessful; the revision was dismissed by this court on 9-12-1982. This order was assailed by the petitioner by means of a Special Leave Petition before the Supreme Court, which dismissed it and gave a month's time to the petitioner to file a civil suit for adjudication of title and obtain appropriate order from the Civil Court. A suit numbered as 1017 of 1983 has been filed in the name of the deity 'Baba Darweshwarnath Shivji' in the court of the Munsif (West), Allahabad for declaration that the deity is owner of the temple and the shops erected on open land duly managed by the petitioner, Sri Rajendra Puri and others is not a public property or place. THERE is yet another prayer to the effect that the criminal proceedings under section 133 of the Code (Criminal Case No. 8 of 1981 ; State v. Rajendra Puri and others) be declared ineffectual as against the rights of the plaintiff-deity and not binding on the plaintiff. Relief for permanent injunction has also been sought against the State of Uttar Pradesh and the District Magistrate, Allahabad arrayed as defendants 1 and 2, respectively, restraining them from demolishing the shops and interfering with the internal management of the temple.
(2.) AN ex-parte order was passed by the Munsif on 24-12-1983 for maintaining ' status-quo'. The City Magistrate, Allahabad, is proceeding for adjudication of the point which has to be considered while exercising the powers under section 138 of the Code. The prayer of the applicant to stay further proceedings was rejected by the City Magistrate by his order dated 11-4-1984. This petition was moved under section 482 of the Code on 24-4-1984 by one of the persons, who claims to possess a right to manage the affairs of the temple, for quashing the proceedings under section 133 of the Code in the Court of the City Magistrate, Allahabad, the same being Cr. Case No. 41/7 of 1983; State v. Rajendra Puri and others. I have heard the learned counsel for the parties and have carefully considered the points canvassed before me. Having rightly realised that the prayer for quashing the entire proceedings that have taken place so far in the Court of the City Magistrate, Allahabad, in the said criminal case cannot be legally accepted, the learned counsel for the petitioner contended that the petitioner wants that the proceedings under section 138 of the Code be stayed. It was urged that because the Civil Court is seized of the real matter in issue and it will give its final verdict on the rights of the parties, the proceedings simultaneously going on before the City Magistrate may be stayed. In support of his contention, the learned counsel cited two decisions of this Court in Bahori v. Executive Engineer, PWD, 1964 AWR 417 and Mahabir Singh v. State, 1980 ACrR 264.
(3.) THE learned counsel for the opposite-parties urged that the criminal court is competent to decide the question as to whether the erection of the gumtis has caused nuisance to the public at large and the opposite parties have a right to continue proceedings in the criminal court of competent jurisdiction, especially when it has not been taken away by any statutory provisions. He cited two decisions in support of his contention that the proceedings cannot be stayed; One is M. S. Sheriff v. State of Madras, AIR 1954 SC 397 and the other is Ram Narain Singh v. State of Utrar Pradesh, 1983 ACrR 186, From the fore-going narrative, it is evident that the first stage prescribed under section 137 of the Code, after the passing of the conditional order under section 133, has finished. The Magistrate enquired into the matter in respect of the denial of the existence of public right and recorded a finding, which has been upheld from this Court, in revision as well, that there was no substantial evidence in support of the denial about the existence of public right in respect of the disputed place Now, admittedly, the second stage has come, namely, as to whether the constructions allegedly made on the land around the temple are causing obstructions in the public right to perform puja in the temple. The public has no concern at all with the internal management of the temple. If the right to reach the temple to make offerings and perform puja stands obstructed, it is well within its right to agitate the matter in criminal court. The object of section 133 is to enable the Executive Magistrate to pass quick orders and deal speedily with the cases where public nuisance or obstruction has been made in the right of the public at large. What I mean to emphasise is that the Magistrate has now to see whether some such act has been done by the petitioner which has caused a common injury, danger or annoyance to the public or to the people in general. If the Magistrate is satisfied, after taking evidence on this fresh issue, namely, that an obstruction has been caused by the erection of wooden 'gumtis' he would be well within his right to make the conditional order absolute vide sub-clause (2) of Section 138 of the Code. This is note-worthy that if the Magistrate finds from the evidence to be adduced by the parties that no such obstruction has been caused, the Magistrate shall drop the proceedings vide sub-clause (3) of section 138. There is, thus, a statutory provision to proceed with the determination of the point as to whether the alleged obstructions has been caused in the right of the public at large to use land around the temple for going upto the deities installed in the temple. This statutory right to agitate the matter before Competent Authority cannot be taken away and the proceedings, in my opinion, cannot be stayed simply because a suit in the name of the deities has been filed for adjudication of the point as to whether it is a public temple or a private one. Is Ram Narain's case (supra) cited on behalf of the opposite parties, it has been, placing reliance on a Supreme Court decision of 1954 laid down : " The proceedings under section 133, CrPC having been initiated first, the mere institution of civil suit would not divest the Magistrate of his power to first decide whether there is any reliable evidence in support of denial, and if it hold that it is not so, he will be at liberty to continue the proceedings under section 138, CrPC and the institution of any suit pending the proceedings under section 133, CrPC would not bar his jurisdiction to proceed". This principle can be safely applied to the facts of the instant case.;