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2005 Supreme(All) 77
ALLAHABAD HIGH COURT
Amar Saran, J.
Mool Chandra
Versus
State of U.P.
Criminal Misc.Application 878 of 2002
Decided On : 18 January 2005
Criminal Misc. Application 878 Of 2002
P.C.MISHRA, YOGESH AGARWAL,
The necessity of following the procedure of summons case and taking evidence in proceedings under Section 133, Cr. P. C.
Headnote:
Section 133 - Abuse of Process of Court - 133(1), 138(1), 254(1) - The court discussed the abuse of process of court in proceedings under Section 133, Cr. P. C. and the necessity of taking evidence in such proceedings. The court referred to the spot inspection, sale deed, and the report of the Station Officer in charge, and highlighted the importance of following the procedure of summons case in deciding the matter.
Fact of the Case:
The application was filed for quashing the proceedings under section 133, Cr. P. C. and the order directing the removal of encroachments. The applicants contended that the proceedings were an abuse of process of court as they pertained to the same encroachment subject to a civil suit.
Finding of the Court:
The court found that the spot inspection and sale deed supported the proceedings under Section 133, Cr. P. C. The court also noted the error in not taking oral evidence and the necessity of following the procedure of summons case.
Issues: Abuse of process of court, necessity of taking evidence in proceedings under Section 133, Cr. P. C.
Ratio Decidendi: The court emphasized the importance of following the procedure of summons case and taking evidence in proceedings under Section 133, Cr. P. C.
Final Decision: The orders passed by the lower courts were set aside, and the case was remanded back to the Additional City Magistrate to pass appropriate orders in accordance with law after following the procedure of summons case.
( 1 ) THIS application under Section 482, Cr. P. C. has been filed for quashing the proceedings under section 133, Cr. P. C. and the order dated 12-3-2001 passed by the Additional City Magistrate (First), Allahabad directing the applicants to remove the encroachments from the lane and drain at the south of their house within fifteen days in proceedings under Section 133, Cr. P. C. and the order dated 22-1-2002 passed by the Additional District and Sessions Judge, Court No. 11 dismissing the criminal revision against the aforesaid order dated 12-3-2001.
( 2 ) IT is contended by the learned counsel for the applicants that the proceedings under Section 133, Cr. P. C. which have been initiated by opposite party No. 2 are an abuse of process of Court because they pertain to the same encroachment, which was subject-matter of civil suit No. 477 of 2000 (Lal Bahadur v. Mool Chandra), which was pending before the third Civil Judge (Junior division), Allahabad.
( 3 ) IN this case a spot inspection was even conducted by the Additional City Magistrate on 4-10-2001 and he has recorded a finding in the impugned order that the subject-matter in the civil suit pertained to certain alleged encroachments in a narrow strip of land, which was running north to south between the houses of opposite party No. 2 and the applicants and it did not pertain to the alleged encroachments on the lane and drain which run in the east-west direction and fall on the south of the house of the applicant Mool Chandra and Lal Bahadur, Opposite party No. 2.
( 4 ) MY attention was drawn to the site plan showing the distinct position of the disputed encroachments, which was subject-matter of the civil suit and the encroachment on the lane and drain which fell on the South of the houses of the parties, and which ran in an East-West direction which was the subject-matter of the proceedings under Section 133, Cr. P. C.
( 5 ) THE spot inspection, in which the learned Magistrate has observed that the applicants had encroached on the lane and drain to the south of their house, is permissible in view of Division bench decision of Punjab and Haryana High Court in Raj Mal v. Joginder Ram, 1991 Cri LJ 3059, which points out that under Section 310 of Cr. P. C. any Judge or Magistrate has the power of inspecting any place which in his opinion is necessary for appreciating the evidence after giving notice to the parties. The aforesaid decision also approved of the Division Bench decision of Allahabad High Court in Satya Prakash v. State of U. P. , 1983 All LJ 722, which has overruled certain earlier single Judge decisions which had held that, inspection by the Magistrate would be unauthorized. Hence, there was no illegality in the spot inspection done by the City magistrate for ascertaining the proper position on the spot.
( 6 ) LEARNED City Magistrate has also observed in his order that in the sale deed dated 4-4-1996 by which Yogesh Kumar had bought the land (whose case was being represented by Mool Chand, the applicants herein as they belonged to his family) also mentioned that the sale deed shows that there is a lane running to the south of the house, which was supported by his site inspection.
( 7 ) THE Court below has also rightly not attached any value to the report of the Station Officer in charge, police station Colonelganj dated 8-9-2000, which related to the dispute between the parties in respect of the narrow lane between the houses of the parties, which was separated by that lane and which ran in a north to south direction and was the subject-matter of the civil dispute between the parties and it did not relate to the obstruction, which is alleged to have been committed by the applicants in the lane which ran in the east to west direction on the south of their house.
( 8 ) HOWEVER, one submission made by the learned counsel for the applicants appears to have merits as it is stated that the proceedings under Section 133, Cr. P. C. were decided only on the
