# Om Prakash Pandey Revisionist v. State of U.P. & Ors

- **Citation:** (2019) 3 ILRA 368
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-07-10
- **Bench:** Karuna Nand Bajpayee
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/om-prakash-pandey-revisionist-v-state-of-u-p-ors-44901
- **Pages:** 15

## Headnote

A. Criminal Law -Code of Criminal
Procedure,1973 - Section 133 - the
proceedings under section 133 of Cr.P.C.
are summary in nature and are meant
for the cases of imminent danger to the
public tranquillity and peace and the
same should not be used or rather
misused to scuttle the valuable right of
owner of property and that is why, the
legislature has in its wisdom used the
words "any reliable evidence" in support
of such denial, in the event and in case
of which he shall stay the proceedings
until the matter of the existence of such
right
has
3 All. Om Prakash Pandey Vs. State of U.P. & Ors.
369
been decided by a competent Court.
(Para 12 to 17)

B.
Criminal
Law
-The
procedure
prescribed u/s 141 Cr.P.C. in the case
where the order u/s 136 of Cr.P.C. is
made absolute, is that the removal of
unlawful obstruction or nuisance is done
by the person against whom the order is
made, the Magistrate has to give notice
to such person requiring him to perform
the act within a time framed fixed in the
notice and in the event of disobedience
such person is held liable to the penalty
u/s 188 IPC and in the case of
disobedience the Magistrate may also
cause such act to be performed and may
also recover the cost of performing it
from the properties of such person.in the
instant case this procedure has not been
adopted for the reason not known to this
court and only best known to the third
respondent who reflected unjustified
and unmindful performance of statutory
obligations
bestowed
upon
him.
(Para22,23)

Revision allowed (E-6)

List of cases cited:-

## Text

_Characters 0–39,765 of 49,933. This is a partial read: ask again with offset=39765 for what follows._

368 INDIAN LAW REPORTS ALLAHABAD SERIES
been found to have been absent on the
spot. The revisionist no.2 summoned
under section 319 Cr.P.C. is said to be a
doctor employed in V.S.R. Memorial
Medical Institute, Rasulabad, Kanpur
Dehat. It may be clarified that this
observation of this Court must not be
construed to have any reflection upon the
ultimate merits of the case and the trial
Court shall be at liberty to proceed in the
matter
independently
remaining
completely
unprejudiced
by
the
observations of this Court. But as this
Court is dealing with the task of assessing
the legitimacy or the appropriateness of
summoning of the additional accused
some sort of reflections are bound to
come during the course of discussions.

7. At any rate, this Court is of the
considered opinion that the summoning of
the revisionists was, to speak the least, at
this stage a kind of hasty act resulting into
the passing of the impugned order in
question which cannot be called a very
mature or prudent order. Neither the
cross-examination of the witness was
allowed to take place nor any further
evidence had been allowed to come that
would have given more material to assess
the
worth
and
credibility
of
the
allegations that have been brought against
the two revisionists. The impugned order
is certainly not in keeping with the spirit
of the Constitution Bench's decision of
the Apex Court given in the case of
Hardeep Singh vs. State of Punjab and
others, 2014 (3) SCC-92. The trial court
would do well to keep in perspective the
sound age old principle that to have
power to do something is different from
having the judicial ability to know how
that power is to be exercised. This Court
therefore finds good reason to allow the
revision.

8. The impugned order dated
12.12.2018 is hereby set-aside. The
revision stands allowed. The summoning
of revisionists is also set-aside.

9. It may be observed that if at some
future stage more convincing and more
sufficient evidence is brought on record
which may justify the summoning of the
additional accused persons, the trial Court
shall be at liberty to proceed further in
accordance with law as it may deem fit to do.
----------
(2019)11ILR A368

REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABD 10.07.2019

BEFORE
THE HON'BLE KARUNA NAND BAJPAYEE, J.

Criminal Revision No. 685 OF 2019

Om Prakash Pandey ...Revisionist
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionist:
Sri Vimlendu Tripathi

Counsel for the Opposite Parties:
A.G.A., Sri Himanshu Pandey

A. Criminal Law -Code of Criminal
Procedure,1973 - Section 133 - the
proceedings under section 133 of Cr.P.C.
are summary in nature and are meant
for the cases of imminent danger to the
public tranquillity and peace and the
same should not be used or rather
misused to scuttle the valuable right of
owner of property and that is why, the
legislature has in its wisdom used the
words "any reliable evidence" in support
of such denial, in the event and in case
of which he shall stay the proceedings
until the matter of the existence of such
right
has
3 All. Om Prakash Pandey Vs. State of U.P. & Ors.
369
been decided by a competent Court.
(Para 12 to 17)

B.
Criminal
Law
-The
procedure
prescribed u/s 141 Cr.P.C. in the case
where the order u/s 136 of Cr.P.C. is
made absolute, is that the removal of
unlawful obstruction or nuisance is done
by the person against whom the order is
made, the Magistrate has to give notice
to such person requiring him to perform
the act within a time framed fixed in the
notice and in the event of disobedience
such person is held liable to the penalty
u/s 188 IPC and in the case of
disobedience the Magistrate may also
cause such act to be performed and may
also recover the cost of performing it
from the properties of such person.in the
instant case this procedure has not been
adopted for the reason not known to this
court and only best known to the third
respondent who reflected unjustified
and unmindful performance of statutory
obligations
bestowed
upon
him.
(Para22,23)

Revision allowed (E-6)

List of cases cited:-

1. Raghubar Dutt Vs. Suresh Chandra and Ors,
(1987) ACR 566

2. Wali Uddin and Ors Vs. State of U.P. and
Ors,1988(12) ACR 1

3. Md. Basar Ali Molla and Ors Vs. State of
W.B. and Ors,MANU/WB/0583/2006

(Delivered by Hon'ble Karuna Nand Bajpayee, J.)

1. This criminal revision has been
preferred against the impugned order
dated 11.01.2019 passed by the City
Magistrate, Gorakhpur u/s 133(1) of
Cr.P.C. in Case No.D201805310000230
of 2017 (Mohd. Salim vs. Om Prakash
Pandey), P.S.-Cantt., District-Gorakhpur.

2. Matter was taken up on
15.02.2019 by the preceding bench of this
Court and the effect and operation of order
dated 11.01.2019 passed by the City
Magistrate was stayed until further orders. It
was also specifically directed that status-quo
with regard to nature of possession of land
shall also be maintained. Certain directions
were also given to the District Magistrate with
regard to immediate measurement of the spot
in question. Subsequently on 13.3.2019 Shri
Himanshu Pandey, Advocate appeared on
behalf of opposite party no.2. Matter was
thereafter listed to come up on 3rd April, 2019
with the direction to learned A.G.A. to file
counter affidavit. Later on case was again
taken up on 31.4.2019 and the compliance
report about the directions issued by this
Court was filed on behalf of State. Matter was
fixed up for final disposal on 17th April, 2019
and last opportunity to file counter affidavit
was given to opposite party. Rejoinder
affidavit if any, was also directed to be filed in
the meantime. It further transpires that a
listing application was moved to list the
matter earlier as a result of which the matter
was fixed up for today. The same has thus
come up before this Bench and been taken up
today by the Court.

3. Learned counsel appearing on
behalf of revisionist at the very outset has
submitted that despite the stay orders of
this Court, the boundary wall in question
has
been
demolished
in
complete
violation of the Court's direction and not
only a gross defiance of the order has
been done but the authorities have acted
in contempt of the same and a contempt
application has already been moved
before the appropriate bench of this Court
in that regard. The urgency of the matter
was placed before the Court.
370 INDIAN LAW REPORTS ALLAHABAD SERIES

4. On the query raised by the Court,
learned A.G.A. as well as learned counsel
appearing for opposite party no.2 have
submitted that so far no counter affidavit
has been filed. Some further time in that
regard has once again been sought. This
Court in the circumstances of the case
feels that the matter was initially taken up
on 15.2.2019 and since then sufficient
time has been there to file counter
affidavit. Last opportunity has already
been given. This Court does not see any
good justification to give further time for
that purpose in the circumstance of the
case. The matter has already been fixed
for final disposal by the preceding Bench.

5. While going through the record of
the case in hand, this Court has the
occasion to go through the orders of this
Court passed by the preceding Bench
presided by Hon'ble Ajit Kumar, J.
whereby not only precise and detailed
directions have been given regarding the
measurement of the land in question but
after receiving the compliance report sent
on behalf of the District Magistrate and
after going through the same, the Court
had proceeded to make pithy observations
of significance regarding the lackadaisical
manner
in
which
the
concerned
authorities have acted in this matter. It
would not be out of place to quote the
order passed by the preceding Bench on
03.4.2019, which reads thus:

"1. This Criminal Revision is
directed against the order dated 11th
January, 2019 passed by the City
Magistrate, Gorakhpur, directing for
removal of the boundary wall of the
present applicant to the North of the
graveyard on account of it being a public
passage.

2. The grievance raised in the
revision petition is that the revenue
records were not examined by the City
Magistrate and in exercise of the power
which is quasi-judicial in nature. The City
Magistrate, therefore, overlooking the
records
directed
for
removal
of
constructions, as if the constructions had
resulted in public nuisance causing
blockade of a public passage.

3. This Court while entertaining
the revision petition, passed a detailed
order on 15th February, 2019 directing
the
District
Magistrate/
Collector,
Gorakhpur
to
get
the
immediate
measurement of the spot so as to
ascertain whether the land in question is
really a public passage or is a part of the
land held by the applicant by virtue of
sale deed. It was also directed that the
revenue official of the concerned Tehsil
shall be asked to render help with
reference to the relevant revenue records
while preparing the report. This Court
also stayed the effect and operation of the
order dated 11th January, 2019 fixing
13th March, 2019.

4. On 13th March, 2019 Sri
Himanshu Pandey, learned Advocate, had
put in appearance on behalf of opposite
party no. 2 by filing vakalatnama and the
Additional Government Advocate was
granted further time to submit the report
fixing 3rd April, 2019.

5.
Today
an
affidavit
of
compliance on behalf of the Staterespondents, including the opposite party
no. 3, has been filed annexing therewith a
report
of
the
District
Magistrate,
Gorakhpur dated 12th March, 2019 in
which it has been stated that a team for
inspection and preparation of report was
constituted headed by Niab-Tehsildar,
Sadar. The inspection team reported that
as far as plot no. 243/29 area 0.295
3 All. Om Prakash Pandey Vs. State of U.P. & Ors.
371
hectare is concerned, the same belongs to
the graveyard and in the revenue record
there is no public passage shown to the
east and north of the graveyard, however,
there is a 16 feet wide passage in which
bricks have been placed with the help of
the villagers. The sketch map that has
been appended to the report shows that
the land in dispute is to the north and east
of the graveyard which belongs to the
applicant
and
is
adjacent
to
the
graveyard where land/ passage in dispute
has been shown.

6. Learned counsel for the
applicant has also drawn the attention of
the Court to the order dated 30th
December, 2011 passed by the then
District
Magistrate,
Gorakhpur
permitting construction of boundary wall
to the south of the land of the present
applicant and there is also order the Subdivisional Officer dated 3rd July, 2013 in
which the direction was issued to the incharge Inspector, Police Station Cantt. to
ensure
that
nobody
could
cause
obstruction in the construction of the
boundary wall of the present applicant.

7. In matter of public nuisance,
while
the
administrative
authorities
adjudicate under Section 133 Code of
Criminal Procedure, it calls for an
absolute objective consideration of the
allegations and appreciation of revenue
records before the authorities come to
conclude that a place is a public passage
or a public place and that on account of
some deliberate activity a public nuisance
is caused. The authorities are hide bound
in law to look into the records of such
land over which public nuisance is
complained of.

8. Prima facie, therefore, I find
that in the present matter the third
respondent has acted quite carelessly and
mechanically with least application of
mind, and as the records reflect.

9. However, this Court before
proceeds to pass final order in the matter
and since the position on the spot has
been altered, in view of the order
impugned here in this revision petition,
the counsel for the other side is afforded
one last opportunity to file his counter
affidavit within ten days from today.

10. Let the matter be placed on
board for final disposal on 17th of April,
2019 in the meanwhile after receiving the
counter affidavit, the applicant may file
rejoinder affidavit.

11. List on 17th April, 2019
showing the name of Sri Himanshu
Pandey,
as
counsel
for
private
respondent. "

6. In the aforesaid backdrop, this
Court deems it proper to decide this
revision finally.

7. Heard Shri Vimlendu Tripathi,
learned counsel for the revisionist, Shri
Himanshu Pandey, learned counsel for
opposite party no.2 and learned A.G.A.
for the State.

8. The crux of factual dispute, as
reflects from the record is that the
revisionist claims himself to be the owner
of land in question, which was purchased
by him through registered sale deed dated
01.4.2010 regarding Arazi No.243/28/1/4
and
243/28/1/5
admeasuring
33.75
decimal (1367.56 Sq. Mtr.) and also
through
registered
sale
deed
dated
07.10.2014
regarding
Arazi
No.243/28/1/2
and
243/28/1/3
admeasuring
217.5
Air
situated
in
Village-Mahadev Jharkhandi, Tappa and
372 INDIAN LAW REPORTS ALLAHABAD SERIES
Pargana-Haveli, Tehsil-Sadar, DistrictGorakhpur. The revisionist further claims
that in the year 2011 itself, he had moved
an
application
before
the
District
Magistrate,
Gorakhpur
regarding
a
dispute of measurement of land in
question and the construction of boundary
wall thereupon, in respect of which the
Revenue Inspector conducted inspection
of land in question and also conducted
measurement of land and submitted the
report which was in his favour, upon
which the District Magistrate passed
order
dated
30.12.2011
and
issued
instructions to the Tehsildar, Sadar,
Gorakhpur to maintain law and order and
to ensure that in case the revisionist raises
construction of boundary wall only on his
own land, no interference be permitted by
any third person. According to the
revisionist, one another application dated
17.4.2013 was also moved by him for the
similar controversy of measurement of
land in question and on that occasion also,
reports of revenue authorities dated
03.7.2013 and 28.6.2013 were forwarded
in favour of revisionist on the basis of
which necessary order was passed by the
administrative
authorities
to
give
protection to the construction raised by
the revisionist and to maintain law and
order on the site. It was only thereafter
that the revisionist had raised construction
of boundary wall over his land in the year
2014 and also sold a few plots of the said
land. According to the averments made in
the affidavit accompanied with the memo
of revision, further claim of revisionist is
that his land is positioned adjacent to east
and north side of one graveyard situated
in Khasra No.243 having an area of
0.2950 hectare and the said graveyard is
recorded as Clause 6-3/graveyard in the
revenue record. The boundary wall
constructed by the revisionist is situated
on the south and west side of his land and
the north side of the land is secured by the
boundary wall of engineering college and
the east side of his land is open. It has
been also claimed by the revisionist that
for the purpose of selling plots in his land,
he developed a thirty feet Kharanja road
on the east side of said graveyard in the
horizontal direction (from east to west) up
to the boundary of said graveyard. Further
claim of revisionist is that few persons
namely Sakoor, Abdul Sattar and Abdul
Gaffar, being owner of some plot of land
of main Gata No.243 and some adjacent
land in other gata numbers of village
Mahadev
Jharkhandi,
executed
one
registered
agreement
to
sale
dated
17.8.2016 in favour of one Santosh Sahi
for the part of land admeasuring 0.405
decimal, which land is also situated
adjacent to the graveyard but on the
different side. These persons, according
to the claim of revisionist, joined hands
with each other and one complaint dated
19.7.2017
was
moved
before
the
administrative authorities on the date of
Janta Darshan organized on 22.7.2017
and in the said complaint it was alleged
that
three
sides
of
graveyard
are
surrounded by a public way and is being
used by the villagers since long time for
their movements and also for performing
Janaza process and the present revisionist
purchased land of said public way from a
few land owners by using force, in respect
of which proceedings are pending in the
court and about 20 days before, the
revisionist raised the boundary wall on his
land by encroaching upon the said public
way whereby the village residents are
facing serious difficulties and are feeling
aggrieved and in case no immediate
action is taken, any untoward situation
may
arise.
This
application
dated
19.7.2017 was treated as complaint u/s
3 All. Om Prakash Pandey Vs. State of U.P. & Ors.
373
133
of
Cr.P.C.
and
Case
No.201805310000230
of
2017
was
registered and report was called from the
local police, upon which two reports
dated 03.8.2017 and 10.10.2017 along
with handmade map of the land in
question were submitted by the local
police
before
the
City
Magistrate,
Gorakhpur, who has been arrayed in his
individual capacity as third respondent in
this criminal revision. The erstwhile city
Magistrate passed preliminary order dated
06.11.2017 u/s 133 of Cr.P.C. calling
response of revisionist for removal of
boundary wall or for showing cause as to
why the order should not be confirmed.
The revisionist submitted his objection
dated 02.02.2018 denying existence of
public way adjacent to the graveyard and
explained that neither revenue record nor
municipal record discloses any public
passage on the land in question and also
disclosed that the land in question was
purchased by him through registered sale
deeds
and
also
stated
that
no
encroachment has been done by him on
any public passage and the entire story of
complainant is concocted and false
lacking all factual basis. The complainant,
who
has
been
arrayed
as
second
respondent in this criminal revision, filed
his replica dated 11.4.2018 against
objection filed by the revisionist and also
moved an application for spot inspection.
Thereafter, third respondent got posting
as City Magistrate, Gorakhpur and
conducted spot inspection on 28.12.2018
in respect of which a hand written site
map was prepared and the joint statement
of few residents of the vicinity was
recorded and was placed on record.
Thereafter the third respondents passed
final order dated 11.01.2019 u/s 133 of
Cr.P.C.,
against
which
the
present
criminal revision has been preferred.

9. Submission of counsel for the
revisionist is that the claim of public way
or chak road or chak nali is not supported
with any government record or revenue
record or municipal record and is merely
based upon the statement of few persons,
who are adversely interested and inimical
for vested reasons. Further submission is
that the land in question is not a public
place or public passage or public way or
chak road or chak Nali and in fact it is the
private land of the revisionist, upon which
the boundary wall in question was
constructed in the year 2004 with the
strength of orders passed by the District
Magistrate and his subordinates after due
measurement of land of the revisionist. It
has been further submitted that initial
complaint dated 19.7.2017 as well as joint
statement allegedly recorded during the
proceedings u/s 133 of Cr.P.C. has been
signed by Sakoor and Abdul Gaffar, who
executed agreement to sale in favour of
Santosh Sahi and they all are in fact
instrumental for issuance of impugned
order
dated
11.01.2019.
Further
submission is that there is no justification
and reason to hold that the land in
question is public way and to hold that
there is any encroachment over any public
way. Submission is that the third
respondent being City Magistrate passed
the
impugned
order
in
complete
ignorance of factual aspects of the case as
well as settled position of law in this
regard and actually the impugned order is
an outcome of bias and prejudice of third
respondent, who seemed inclined to
favouring the above named Santosh Sahi.
Counsel for the revisionist further submits
that the unfair bias of opposite party no.3
is apparent on the face of record in view
of the subsequent act of demolition of
boundary wall at his instance, despite
having knowledge of the interim stay
374 INDIAN LAW REPORTS ALLAHABAD SERIES
order dated 15.02.2019 passed by this
Court, which act amounts to deliberate
defiance of the order passed by this Court
and even attracts the provisions of
Contempt of Court Act. In this respect,
reliance
has
been
placed
on
supplementary affidavit dated 22.02.2019
filed by revisionist.

10. On the other hand, learned
A.G.A.
supports
the
order
dated
11.01.2019 by submitting that the same is
based upon two reports of local police
and the inspection of third respondent
himself and hence no interference is
required.

11. Supporting the submission of
learned A.G.A., learned counsel for
second respondent i.e. the complainant,
has attempted to make a halfhearted faint
submission that the public passage was
existing at the place since long and was
being used by the villagers and due to
efflux of time, the land in question being
used as public passage cannot be
encroached by the revisionist, as his title
is disputed and as such, the order dated
11.01.2019 is justified.

12. The law in respect of proceeding
u/s 133 of Cr.P.C. is well settled
inasmuch as such proceeding is summary
in nature and the factual dispute about
existence of public passage is required to
be adjudicated upon in the light of denial
of opposite party about existence of
public passage and in case there is some
substance or there is any reliable evidence
in support of such denial, the Magistrate
shall stay the proceedings until the matter
of existence of such right is decided by a
competent court and if he finds that there
is no such evidence, he shall proceed as
provided u/s 138 of Cr.P.C. In this regard,
relevant provisions of law are being
reproduced herein below :

"CHAPTER
X
-
MAINTENANCE OF PUBLIC ORDER
AND TRANQUILLITY

B--Public nuisances

133. Conditional order for
removal of nuisance -

(1)
Whenever
a
District
Magistrate or a Sub-divisional Magistrate
or
any
other
Executive
Magistrate
specially empowered in this behalf by the
State Government on receiving the report
of a police officer or other information
and on taking such evidence (if any) as he
thinks fit, considers--

(a)
that
any
unlawful
obstruction
or
nuisance
should
be
removed from any public place or from
any way, river or channel which is or
may be lawfully used by the public; or

(b)
..........................................................; or,

(c)
..........................................................; or,

(d)
..........................................................; or,

(e)
..........................................................; or,

(f)
..........................................................,

Such Magistrate may make a
conditional order requiring the person
causing such obstruction or nuisance, or
....................., within a time to be fixed in
the order--

(i) to remove such obstruction
or nuisance; or

(ii)
...............................................................;
or

(iii)
...............................................................;
or
3 All. Om Prakash Pandey Vs. State of U.P. & Ors.
375

(iv)
...............................................................;
or

(v)
...............................................................;
or

(vi)
...............................................................,

or, if he objects so to do, to
appear before himself or some other
Executive Magistrate subordinate to him
at a time and place to be fixed by the
order, and show cause, in the manner
hereinafter provided, why the order
should not be made absolute.

(2) No order duly made by a
Magistrate under this section shall be
called in question in any civil Court.

Explanation--A "public place"
includes also property belonging to the
State, camping grounds and grounds left
unoccupied for sanitary or recreative
purposes.

134. .................................

135. .................................

136. .................................

137.
Procedure
where
existence of public right is denied -

(1) Where an order is made
under section 113 for the purpose of
preventing
obstruction,
nuisance
or
danger to the public in the use of any way
river, channel or place, the Magistrate
shall, on the appearance before him of the
person against whom the order was
made, question him as to whether he
denies the existence of any public right in
respect of the way, river, channel or
place, and if he does so, the Magistrate
shall, before proceeding under section
138, inquire into the matter.

(2) If in such inquiry the
Magistrate finds that there is any reliable
evidence in support of such denial, he
shall stay the proceedings 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 section 138.

(3) A person who has, on being
questioned by the Magistrate under subsection (1), failed to deny the existence of
a public right of the nature therein
referred to, or who, having made such
denial, has failed to adduce reliable
evidence in support thereof, shall not in
the subsequent proceedings be permitted
to make any such denial.

138.
Procedure
where
he
appears to show cause

(1) If the person against whom
an order under section 133 is made
appears and shows cause against the
order, the Magistrate shall take evidence
in the matter as in a summons-case.

(2) If the Magistrate is satisfied
that the order, either as originally made
or subject to such modification as he
considers necessary, is reasonable and
proper, the order shall be made absolute
without modification or, as the case may
be, with such modification.

(3) If the Magistrate is not so
satisfied, no further proceedings shall be
taken in the case.

139. Power of Magistrate to
direct
local
investigation
and
examination of an expert

The Magistrate may, for the
purposes of an inquiry under section 137
or section 138--

(a) direct a local investigation
to be made by such person as he thinks
fit; or

(b) summon and examine an
expert

140. Power of Magistrate to
furnish written instructions, etc

(1)
Where
the
Magistrate
directs a local investigation by any
376 INDIAN LAW REPORTS ALLAHABAD SERIES
person under section 139, the Magistrate
may--

(a) furnish such person with
such written instruction as may seem
necessary for his guidance;

(b) declare by whom the whole
or any part of the necessary expenses of
the local investigation shall be paid

(2) The report of such person
may be read as evidence in the case (3)
Where the Magistrate summons and
examines an expert under section 139, the
Magistrate may direct by whom the costs
of such summoning and examination shall
be paid

141. Procedure on order being
made absolute and consequences of
disobedience

(1) When an order has been
made absolute under section 136 or
section 138, the Magistrate shall give
notice of the same to the person against
whom the order was made, and shall
further require him to perform the act
directed by the order within a time to be
fixed in the notice, and inform him that, in
case of disobedience, he will be liable to
the penalty provided by section 188 of the
Indian Penal Code (45 of 1860)

(2) If such act is not performed
within the time fixed, the Magistrate may
cause it to be performed, and may recover
the costs of performing it, either by the
sale of any building, goods or other
property removed by his order, or by the
distress and sale of any other movable
property of such person within or without
such Magistrate's local jurisdiction and if
such other property is without such
jurisdiction, the order shall authorise its
attachment and sale when endorsed by
the
Magistrate
within
whose
local
jurisdiction the property to be attached is
found.

(3) No suit shall lie in respect of
anything done in good faith under this
section.

142. ....................................

143. ....................................."

13. The scope of above quoted
provisions has been discussed by this
Court on many occasions. In the case of
Raghubar Dutt vs. Suresh Chandra
and others, 1987 ACR 566, this Court
has discussed the scope of Section-137 of
Cr.P.C. and observed as follows :

"5. A bare reading of Section
137 would indicate that the provisions
therein are to prevent the Magistrate from
arrogating himself the power of civil
court. Further the Magistrate need not
hold an elaborate enquiry regarding the
rights of the parties. The ambit of the
enquiry is to find out if there is some
prima facie reliable evidence in support
of the denial of public right. The
Magistrate is not called upon to weigh the
evidence in order to determine the rights
and title or truth of the denial. But he has
just to be satisfied as to whether there is
some evidence which could indicate
prima facie that it was possible for a
competent court to place reliance upon
the same. It does not obviously mean that
evidence of such a character would
definitely establish title of the land.
Otherwise in that case the legislature
would not have used the words 'just
reliable evidence',, rather the words used
would have been that the Magistrate
would decide on the basis of evidence
being led as to whether the person
against whom the said order has been
passed, has a right in the land to create
unlawful obstruction in the public way.
The language of Section 137(2) of the
Code is couched in such a way that the
3 All. Om Prakash Pandey Vs. State of U.P. & Ors.
377
reliable evidence would depend upon the
circumstances of each case. To put it
differently, it only connotes where the
evidence was such that if unrebutted, it
would prove the non-existence of public
right as alleged by the person against
whom conditional order was passed See
Lala Bissoomal v. State, 1957 AWR 551,
T. N. Sudhakaran v. Dr. L. M. George,
1977 Cri.LJ 542 and Jaswant Singh v.
Jagir Singh, MANU/PH/0080/1972 :
1972 CriLJ 792. Further the legislature
did not use the word 'evidence' which
definitely establishes the right to claim. In
other words, reliable evidence can be
taken to be a form of evidence which is
not the basis of unreliable or forged
evidence. The duty of a Magistrate is
merely to see whether the evidence in
support of denial of public right is
reliable.

6. In the instant case it is better
to refer to the evidence led by the
opposite parties to prove the denial of
public way or the unlawful obstruction
created. It was alleged by the opposite
parties that plot No. 394 did not contain
public way and there was no such entry
like public way in plot No. 394 in revenue
papers. Similarly in Khatauni for 1387 to
1392F an area of 8 biswa of plot No. 394
was entered as Goth and there was no
mention about any public way or Rasta.
Similarly extract of Khasra for the years
1374 to 1379 F also mentions the area of
8 biswa of plot No. 3 94A as Goth. There
was no mention of any public way or
Rasta. It was for the applicant to move an
application Under Section 133 to explain
as to how this entry of Goth was
converted into Rasta. This was the
question pertaining to right and title. The
aforesaid
extracts
of
Khasra
and
Khatauni were certainly reliable evidence
within the meaning of Section 137(2) of
the Code. On the basis of such evidence
the Magistrate ought to have stayed the
proceedings until the matter of existence
of such right of public way was decided
by a competent court. The Sessions Judge
has correctly allowed the revision by the
impugned order."

14. In Wali Uddin and others vs.
State of U.P. and others, 1988 (12) ACR
1, this Court has elaborated the language
of
Section-137(1)
of
Cr.P.C.
and
concluded in following terms :

"23. It is also to be noticed that
under Section 137(1) the Legislature has
used the word "that after the denial of
such
right
by
opposite
party
the
Magistrate shall inquire into the matter"
and not that the Magistrate shall
adjudicate upon or decide the matter or
controversy between the parties. The
word 'inquire', means eager, to acquire
information.
The
word
'inquire',
according to Shorter Oxford English
Dictionary means to search into, to seek
knowledge, to make inquisition, to make
investigation, to seek information by
questioning, to seek or to try to find out.
The word reliable evidence having been
used and the Magistrate having been
directed to inquire into the matter and not
to decide or adjudicate upon, it is clear
that the person denying the public right
has to put forward a just and bonafide
claim. In case the Magistrate finds that
there is some reliable evidence and
certainly not a conclusive evidence in
support of the denial of any public right
to get the matter decided by a competent
Court. I am however, of the view that the
Section does not make it clear as to who
is the person as to whether first party or
the second party, who has to approach
378 INDIAN LAW REPORTS ALLAHABAD SERIES
the Civil Court. One thing more may be
clarified that in case the Magistrate finds
that there is no such reliable evidence in
that event he shall proceed in view of the
provisions of Section 138 of the Code. In
the instant case what has been done is
entirely
different.
Even
though
the
Magistrate confirmed the conditional
order but the revision has been disposed
of by the learned Additional Sessions
Judge in total disregard of the provisions
of Section 133 read with Section 137 of
the Code. The learned Sessions Judge
was exercising the same jurisdiction as
was to be exercised by the learned
Magistrate. He must have also proceeded
to decide the case just with a view to
make an enquiry as to whether there was
some reliable evidence led by the opposite
party No. 2 who denied the existence of
such right and in case he found that there
was reliable evidence his jurisdiction
ceases and it was for the civil Court to
decide the same. "

15. The Calcutta High Court in the
case of Md. Basar Ali Molla and others
vs. State of West Bengal and others,
MANU/WB/0583/2006 has considered
the aspect of emergency attached with the
dispute regarding public nuisance and has
held that it does not apply to private
nuisance and private dispute and it is
never intended to settle a private dispute.
The relevant paragraphs of Md. Basar Ali
Molla's case (supra) are being reproduced
herein below :

"7. Section 133 Cr. PC relates
to passing of order for removal of public
nuisance in case of emergency. It does not
apply to private nuisance and private
dispute and it is never intended to settle a
private dispute.

8. It has been laid down in the
case reported in MANU/MP/0136/1958 :
AIR1958MP350 that Chapter X of the
Code of Criminal Procedure deals with
"Public Nuisances" and not with private
nuisances. The remedy for the latter is the
civil suit although what constitutes
nuisance may be common to both classes.
Section 133 Cr. PC provides a speedy and
summary remedy in case of urgency
where danger to public interest or public
health is concerned. In all other cases the
party should be referred to the remedy
under the ordinary law.

9. Reference may also be made
in
the
case
reported
in
MANU/KE/0077/1964 : AIR1964Ker252
where it has been held that Section 133
Cr. PC can be used only where there has
been an invasion of public rights. The
case reported in MANU/BH/0076/1958 :
AIR1958Pat210 is also relevant in this
case' where it has been held that Section
133 Cr. PC cannot be used as a short cut
to achieve what one would like to achieve
in a Civil Court. The whole object of
Section 133 Cr. PC is that the public
should not suffer and that such dangers
or obstructions caused by the members of
the public should be removed at the
earliest possible moment.

10. In that case a decision of
Allahabad
High
Court
reported
in
MANU/UP/0008/1914 was referred. In
that case it was held now it is certainly
expedient that in all proceedings initiated
under Section 133 of the Code of
Criminal
Procedure
the
Magistrate
should bear in mind that he is supposed to
be acting purely in the interests of the
public and should be on his guard against
tendency to use this section as substitute
for litigation in the Civil Courts in order
to the settlement of a private dispute.
3 All. Om Prakash Pandey Vs. State of U.P. & Ors.
379

11. In the case reported in
MANU/UP/0013/1942 : AIR1943All19 it
has been stated that the proceedings
under Section 133 Cr. PC is not intended
to settle private dispute between two
members of the public.

12. Reference can also be made
in
the
case
reported
in
MANU/MH/0210/1991 where it has been
held that Chapter XB of Criminal
Procedure Code deals with "public
nuisances" and provides a speedy and
summary method for dealing with them,
in cases of great emergency and where
there is imminent danger to the public
interest.

13. In the instant case there are
no dependable materials to hold that the
disputed pathway was being used by the
public at large but it appears that the
same was used by the students and
teachers of Sisu Siksha Kendra from 2003
to last week of February, 2005 and the
same was not being used from the last
week of February, 2005 as existence from
the said pathway was destroyed and the
same merged with the fishery. So, it does
not appear that the public at large is
being affected and there was any
obstruction of public way or public way
has been destroyed and the same requires
repair. So, no case of sufferance of public
is made out and it does not appear that
the Magistrate had to act purely in the
interest of the public. There is no invasion
of public right. If it assumed that
obstruction is caused to the use of the
pathway in question by the students,
teachers and guardians of students of Sisu
Siksha Kendra by the petitioners then it is
an obstruction not to the public at large
but to a handful of persons and remedy
for said obstruction cannot be had by
resorting to provision of Section 133
Cr.PC. If there is any nuisance the same
is purely a private nuisance for which
Civil Court may be approached for
appropriate remedy according to law.
There is room for contention that Section
133 Cr.PC also does not contemplate any
order for repairing of road which has
been abolished and also any order in
connection with such repair.

14. In view of my above
discussions I hold that both the impugned
orders dated 17.1.2006 and 7.7.2006
cannot stand and the same are liable to
be set aside. In the result, the instant
applications succeed and the same are
allowed. The impugned orders passed by
the learned Executive Magistrate are
hereby set aside. I make no order as to
costs. "

16. The crux of above quoted
statutory law and the precedents is that
the authority under section 133 of Cr.P.C.
can be exercised by the executive
magistrate,
when
any
unlawful
obstruction or nuisance is alleged on any
public place or on any way, which is or
may be lawfully used by the public, as is
the controversy in the present case.
However, to ascertain the justification of
such allegation, the executive magistrate
is required to see as to whether the person
against whom the show cause has been
issued under Section 133(1) of Cr.P.C.
has placed "any reliable evidence" in
denial of such allegation or not. While
doing so, the executive magistrate is not
required to ask for any conclusive
evidence and he has to consider the
evidence brought on record by the person
denying existence of unlawful obstruction
or nuisance with an understanding as to
whether such evidence can be said to be
reliable enough.