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Gauhati High Court · body

2001 DIGILAW 157 (GAU)

Sushil Ranjan Nath v. Satya Brata Dey and Ors.

2001-05-31

P.C.PHUKAN

body2001
Heard Mr. BR Dey, learned counsel for petitioners and Mr. PK Roy Choudhury, learned counsel for opposite parties. 2. This revision petition is directed against the judgment and order dated 2.4.97 passed by the learned Sessions Judge, Kamrup, Guwahati in CR No. 11/ 97 setting aside the order of the Executive Magistrate in Case No. 230 m/95 under section 133 CrPC whereby the learned Magistrate passed order for removing a portion of 6 feet wall for public path measuring 10 feet from North to South. 3. The facts leading to filing this revision petition may be stated as follows: The present petitioners filed a petition before Deputy Commissioner, Kamrup, Guwahati for removal of blockage in-public road in Patta No, 1 of Odalbakra FS Grants stating therein that by blocking the Bye Lane No.2 of Green Wood Lane near the plot of SB Dey, great inconvenience has been caused to the residents of the locality. The police report was called for and by preliminary order dated 21.6.95 a proceeding under section 133 Cr PC was drawn up and a conditional order was passed. The opposite party contested the proceeding and disputed the claim of public path and denied the existence of public right. While the matter ft was pending at that stage, the petitioners filed an application for passing necessary order under section 142 Cr PC. 4. After hearing the learned counsel for the parties, learned Magistrate vide v order dated 21.1.97 ordered for removal of a portion of 6 feet wall constructed on the disputed road. Opposite party filed Criminal Revision No. 11 of 1997 against the demolition order and the learned Sessions Judge by his order dated 2.4.97 allowed the revision petition and set aside me impugned order. 5. Being aggrieved, the petitioners have come up before this Court in the instant revision on the ground that the order dated 21.1.97, being interlocutory , order, the learned Sessions Judge ought not to have entertained the revision petition in view of the specific bar under section 397 (2) Cr PC and as such the learned Sessions Judge acted illegally by passing the impugned order dated 2.4.97 that there is specific bar under section 132 (2) Cr PC for approaching civil Court and that no order duly made by the Magistrate under section 133 Cr PC can be questioned in any civil Court. 6. Learned counsel for the opposite party, Mr. 6. Learned counsel for the opposite party, Mr. PK Roy Choudhury contends that the order dated 21.1.97 passed by the learned Magistrate is not an interlocutory order and in support of his contention referred to a decision in KK Patel & another vs. State of Gujarat & another reported in (2000) 6 SCC 195 wherein it has been held as follows : "It is now well settled that in deciding whether an order challenged is interlocutory or not as for section 397 (2) of the Code, the sole test is not whether such order was passed during the interim stage (vide Amar Nath vs. State of Haryana, Madhu Limaye vs State of Maharashtra, VC Sukla vs. State through CB1 and Rajendra Kumar Sitaram Pande vs. Uttam). The feasible test is whether by upholding the objection raised by a party it would result in culminating the proceedings, if so any order passed on such objections would not be merely interlocutory in nature as envisaged in section 397 (2) of the Code." 7. In the instant case, Mr. PK Roy Choudhury, learned counsel for opposite party has pointed out that in case of demolition of wall pursuant to the learned Magistrate's order, there would be nothing left for decision and it would be resulted in culmination of the proceeding. 8. In the facts and circumstances of the case, the learned Sessions Judge can not be found fault for entertaining the revision petition against the order dated 21.1.97 passed by the learned Magistrate. 9. Mr. PK Roy Choudhury, learned counsel for opposite party has further contended that the learned Magistrate could not have ordered the demolition of the wall without going through the procedure laid down in the Criminal Procedure Code simply by taking resort to section 142 CrPC. In this regard he has referred to a decision of this Court in Smti Sahida Begum & another vs. Sarifuddin Ahmed & others, 2001 (1) GLT 379 (2001 (2) GLJ 112) wherein it has been held that when a proceeding is drawn up under section 133(1) Cr PC for alleged obstruction of a public right, the Magistrate is to make two enquiries firstly to determine whether or not there exists any public right in respect of the way etc and secondly; whether or not there has been obstruction caused on the said way etc regarding the use of it by the public. These two enquiries cannot be made simultaneously without complying with the requirements of section 137 and 133 Cr PC. If the party against whom the conditional order has been made denies the existence of the alleged public right, the Magistrate shall enquire that question by taking evidence of such objector. If on such enquiry, the Magistrate finds that the evidence in support of the denial of alleged right is reliable the Magistrate shall stay the proceedings before him until the question of existence of such right is decided by a competent Court. If, however, the Magistrate finds that such evidence is not reliable, he shall then proceed under section 138 Cr PC to determine the other question viz whether there has been any obstruction etc caused by the objector, by taking evidence of both the parties. If on taking such evidence the Magistrate finds that the conditional order is reasonable and proper, he shall make it absolute with or without modification as may be necessary, or, if not so satisfied he shall close the proceeding under section 133 Cr PC. 10. In the instant case, t am of the opinion that the Magistrate could not have passed the impugned order dated 21.1.97 for demolition of the wall without following the procedure laid down as aforesaid. Taking resort to section 142 Cr PC the Magistrate can pass an order only when he considers that immediate measure is required to be taken to prevent imminent danger or injury of a serious kind to the public. In this regard Mr. PK Roy Choudhury, learned counsel for opposite party submits that in the present case there is no necessity for taking any immediate measures to prevent imminent danger or injury of a serious kind to the public. The petitioners even now have way to reach their homes and they have filed this petition under section 133 Cr PC just to get a short cut. In this regard Mr. PK Roy Choudhury, learned counsel has referred to a very old decision in Mirza Mohammad Ashraf vs. Emperor & others reported in AIR 1937 Lahore 101. The petitioners even now have way to reach their homes and they have filed this petition under section 133 Cr PC just to get a short cut. In this regard Mr. PK Roy Choudhury, learned counsel has referred to a very old decision in Mirza Mohammad Ashraf vs. Emperor & others reported in AIR 1937 Lahore 101. The relevant portion reads as follows : "A case under section 133, Cr PC was pending in the Court of the Magistrate, First Class, Batala and during the pendency of that case the Magistrate passed an order under section 142, Criminal Procedure Code in the following terms: All the four entrances, at present closed, on the four sides of the Reti Chhalla, be opened and left for public use without let or hindrance of any description whatsoever. The entrance on the North and West, being temporarily closed by J means of wire and stakes to be opened today, by the removal of the wire, and the stakes to be removed within seven days, the entrances on the South and East being closed by means of bricks are to be opened within seven days. This order appears to have been necessitated by an apprehension of the breach of peace on account of the obstruction caused by the persons proceeded against in a public way. Mirza Mohammad Ashraf, Nazirn Jaidad Sadr Anjuman Ahmadia, Gadian, presented a petition to the Sessions Judge, Gurdaspur, objecting to the legality of this order. The petition was, under the orders of this Court, transferred to the Court of Session at Amritsar and the Sessions Judge, agreeing with the Magistrate, has dismissed it. After hearing counsel on both sides, I am of opinion that the order of the Magistrate is illegal and cannot therefore be maintained. The material portion of sub-section (1) of section 142 Criminal Procedure Code reads as follows : If a Magistrate making an order under section 133 considers that immediate measure should be taken to prevent imminent danger or injury of a serious kind to the public, he may issue such an injunction to the person against whom the order was made, as is required to obviate or prevent such danger or injury pending the determination of the matter. It would thus appear that section 142, Criminal Procedure Code is not an independent section, but is controlled in its effects by section 133, Criminal Procedure Code. It would thus appear that section 142, Criminal Procedure Code is not an independent section, but is controlled in its effects by section 133, Criminal Procedure Code. Now a reference to section 133 Criminal Procedure Code shows that the section is confined to certain matters which are specifically mentioned therein and cannot brought into play to govern or control other matters which are quite extraneous to it. The matters dealt with by this section are as follows : (a) Unlawful obstruction or nuisance in any way, river or channel, or public place; (b) The conduct of any trade or occupation which is injurious to the health or physical comfort, of the community; (c) the construction of any building or the disposal of any substance, as is likely to occasion conflagration or explosion; (d) The removal, repair or support of any building, tent or structure, or the removal or support of any tree, which is in such a condition that it is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by; (e) The fencing of any tank, wall or excavation adjacent to any public way or public place so as to prevent danger arising to the public; and (f) the destruction, confining or disposal otherwise of any dangerous animal. It would be obvious from this analysis section 133 that it is nowhere contemplated by the section that it would govern cases where an imminent breach of the peace is apprehended. The 'serious injury' or the 'imminent danger' contemplated by section 142 Criminal Procedure Code refers to the injury or danger emanating from those things themselves which are specified in section 133 and consequently section 142 is limited in its scope. An order under section 142 could therefore be passed only if an injury or danger specified in section 133, Criminal Procedure Code was apprehended and not otherwise. Such 'serious injury' or 'imminent danger' is non-existent, in this case. I am accordingly constrained to hold that the order was ultra vires of the Magistrate and I have no option but to set it aside." 11. In view of what has been stated above, the learned Sessions Judge has rightly set aside the impugned order dated 21.1.97 passed by the learned Magistrate for demolition of the wall in question. I am accordingly constrained to hold that the order was ultra vires of the Magistrate and I have no option but to set it aside." 11. In view of what has been stated above, the learned Sessions Judge has rightly set aside the impugned order dated 21.1.97 passed by the learned Magistrate for demolition of the wall in question. Accordingly, there is no merit in this revision petition and the same is dismissed. Interim order, if any, passed by this Court shall stand vacated. 12. Send down the lower Court records immediately along with a copy of the order of this Court. The learned Magistrate shall make an endeavour for expeditious disposal of the case preferably within a period of 2 months from the date of receipt of this order along with records.