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2002 DIGILAW 1192 (ALL)

BRIJ KISHORE RAI v. STATE OF U. P

2002-09-06

U.S.TRIPATHI

body2002
U. S. TRIPATHI, J. ( 1 ) HEARD learned counsel for the petitioner-Sri Kameshwar Singh appearing on behalf of respondent No. 3 and the learned A. G. A. ( 2 ) THIS petition under Art. 226 of the Constitution of India has been filed for quashing the order dated 4-5-2002 passed by Sub-Divisional Magistrate, Sikandarpur, district Ballia in Criminal Case No. 30 of 1997 making the conditional order under S. 133 (1), Cr. P. C. absolute as well as the order dated 6-8-2002 passed by the Sessions Judge, Ballia in Criminal Revision No. 198 of 2002. ( 3 ) IT appears that on the report of S. O. , P. S. Pakari, district Ballia dated 11-9-1997 a proceeding under S. 133, Cr. P. C. was initiated against the petitioner on the ground that he had made encroachment on public path by causing obstruction to the public path. Considering the report of S. O. , P. S. Pakari the learned Magistrate passed a conditional order dated 17-9-1997 under S. 133 (1), Cr. P. C. asking the petitioner to remove the encroachment, or if he objects so to do, to appear before him and show cause why the order should not be made absolute. The petitioner appeared before the Magistrate on 27-12-1997 and filed show cause alleging that disputed land was his Abadi land and he had not made any encroachment or obstruction on the public path and the proceeding under S. 133, Cr. P. C. could not be initiated. In support of his above denial he filed certain documents. The learned Magistrate also made local inspection of the spot. On the basis of local inspection note the learned Magistrate held that the petitioner had obstructed the public path by raising earth on it due to which the public path as well as flow of water of Nabdan had been blocked. With these findings he made the conditional order absolute vide order dated 4-5-2002. ( 4 ) AGGRIEVED with the above order the petitioner filed Criminal Revision No. 198 of 2002 before the Sessions Judge. The learned Sessions Judge agreeing with the finding of Sub-Divisional Magistrate dismissed the revision vide order dated 6-8-2002. ( 5 ) THE above orders have been challenged in this petition. ( 4 ) AGGRIEVED with the above order the petitioner filed Criminal Revision No. 198 of 2002 before the Sessions Judge. The learned Sessions Judge agreeing with the finding of Sub-Divisional Magistrate dismissed the revision vide order dated 6-8-2002. ( 5 ) THE above orders have been challenged in this petition. ( 6 ) HEARD learned counsel for the petitioner-Sri Kameshwar Singh appearing on behalf of respondent No. 3 and the learned A. G. A. ( 7 ) SECTION 136, Cr. P. C. says that if a person against whom a conditional order has been passed does not perform such act or appear and show cause, the conditional order shall be made absolute. Section 137, Cr. P. C. says that in case of denial by the person concerned the Magistrate shall make an enquiry and if, in such enquiry the Magistrate finds that there is any reliable evidence in support of such denial he shall stay the proceeding until the matter of the existence of such right has been decided by a competent Court and if he finds that there is no such evidence, he shall proceed as laid down in S. 138, Cr. P. C. ( 8 ) IN the instant case the petitioner against whom the conditional order under S. 133 (1), Cr. P. C. was passed admittedly appeared before the Magistrate, filed his show cause and also filed evidence in support of denial. The learned Magistrate has not recorded any findings that the evidence adduced by the petitioner was reliable in support of denial or not. His entire finding was based on local inspection. There is also no such finding that the land in question was public path. In fact no discussion on the document and evidence of the petitioner was made and the learned Magistrate blindly accepted the inspection note. The local inspections are made for better appreciation of the evidence on record and should not be used as sole basis for deciding the matter in controversy. The Revisional Court has, also not taken into consideration this aspect and wrongly confirmed the impugned order passed by the Magistrate. In these circumstances, the order passed by the Magistrate as well as the Sessions Judge are liable to be quashed. ( 9 ) THE petition is allowed. The Revisional Court has, also not taken into consideration this aspect and wrongly confirmed the impugned order passed by the Magistrate. In these circumstances, the order passed by the Magistrate as well as the Sessions Judge are liable to be quashed. ( 9 ) THE petition is allowed. The impugned orders passed by the Magistrate and the Sessions Judge are hereby quashed and the learned Sub-Divisional Magistrate is directed to decide the matter afresh in the light of observations made above at an early date. Petition allowed. .