S.S.DEWAN, J. - (1.) THIS petition under Section 482 of the Code of Criminal Procedure (for short, the Code) has been filed by the petitioner for quashing the order of the Sub-Divisional Magistrate, Fazilka, dated August 30, 1985 (Annexure P. 2).
(2.) RESPONDENT No. 1, Varinder Kaur filed a complaint under Section 133 of the Code in the Court of the Sub-Divisional Magistrate, Fazilka, alleging therein that the petitioner be directed to remove the wall constructed by him in a street situated in Nai Abadi, Fazilka, because the same was constructed by him in a thorough-fare and was causing nuisance to the general public. In pursuance of this complaint, the Sub-Divisional Magistrate issued notice to the petitioner under Section 133(1) of the Code directing him to demolish the said wall or to appear in the Court to show cause as to why the order should not be made absolute. Consequent upon the notice, the petitioner appeared before the sub-Divisional Magistrate. On the application dated July 26, 1985, made by Smt. Varinder Kaur respondent, the learned magistrate made personal inspection of the spot and thereafter passed the impugned order dated August 30, 1985 and made the order under Section 133(1) of the Code absolute and a notice under Section 141 of the Code was ordered to be issued to the petitioner directing him to demolish the wall within fifteen days of the impugned order. Against this order, the instant petition has been filed by the petitioner. The legality of the impugned order has been questioned on the ground that on the account of the inspection made by the Magistrate, the trial is vitiated. The learned counsel for the petitioner relied on a decision in Rama Dular v. State of U.P and others 1980 All. L.J. 570 and contended that there is no provision in law for the Magistrate to have made a personal local inspection in the proceedings initiated under Section 133 of the Code and the fact that the Magistrate had inspected the spot, vitiated the trial. This view was accepted and it was held that Section 139 of the Code only empowers a magistrate conducting the enquiry under Section 137 or 138 of the Code to direct a local investigation to be made by a person whom the considers fit. Under Section 140 of the Code, the Magistrate has to furnish such person with such written instructions as may seem necessary for his guidance. Thereafter, such person has to proceed to the spot and submit his report which is to be read in evidence. It was observed that from these provisions, it becomes clear that on principles of natural justice both the parties will have a right to file objections to the report of such local inspection which would be decided by the Magistrate himself while conducting the inquiry under Section 138 of the Code. It was consequently found that an illegality had been committed by the Magistrate in his decision which was influenced by his personal inspection. Taking this view, the order of the Magistrate directing removal of obstruction was quashed. The learned counsel for the respondent No. 1 has nothing to repel this contention. In this view of the matter, this petition is allowed and the impugned order dated August 30, 1985, is set aside.;