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ALLAHABAD HIGH COURT
Poonam Srivastava, J.
Deo Narain Jaiswal, Govardhan Das Jaiswal, Smt. Manjulata Jaiswal
Versus
State of Uttar Pradesh
Criminal Misc. Application 3507 of 1999
Decided On : 07 April 2005
Criminal Misc. Application 3507 Of 1999
Section 482 Cr. P. C - Quashing of Orders - Section 133 Cr. P. C, Section 142 Cr. P. C - Summary Proceedings - Right and Title Adjudication - Public Nuisance - Emergency Situations
Fact of the Case:
The case involved a dispute over a common passage between two properties. The applicants sought to quash orders passed by the Magistrate under Section 133 Cr. P. C and Section 142 Cr. P. C.
Finding of the Court:
The court found that the Magistrate had overstepped his boundary in passing the impugned orders, as the proceedings under Section 133 Cr. P. C were not intended to settle private disputes or substitute for civil proceedings.
Issues: The main issue was whether the Magistrate's orders under Section 133 Cr. P. C and Section 142 Cr. P. C were justified in the absence of imminent danger to public at large.
Ratio Decidendi: The court held that the provisions under Section 133 Cr. P. C are for emergency situations where there is imminent danger to public at large, and the right and title cannot be adjudicated in such proceedings.
Final Decision: The court quashed the orders passed by the Magistrate and directed the parties to maintain status quo until the rights of the parties are decided in the civil suit.
( 1 ) LIST is revised.
( 2 ) LEARNED counsel for the applicants is present. Learned A. G. A. represents opposite party No. 1. Counter and rejoinder affidavits have been exchanged.
( 3 ) THIS application has been filed invoking jurisdiction under Section 482 Cr. P. C for quashing the orders dated 7. 7. 1990 and 18. 8. 1999 passed by the S. D. M. Deoria in case No. 177 of 1999. The applicant No. 1 purchased a portion of the disputed house adjacent to Malviya road by means of registered sale deed dated 29. 4. 1974 and the other portion towards west was purchased by one Mohal Lal and his brother in the year 1971 and 1974 respectively from Smt. Girja srivastava and her sons which covered common passage, initially measured 12 feet x 40 feet but subsequently was reduced to 12 feet x 9 feet. This passage which was also sold and is mentioned in the sale deed forms the subject matter of dispute. It is alleged that contesting respondent bangali Prasad Verma who is also resident of Malviya Road Deoria had attempted to use the land owned by the applicant Nos. 2 to 4 alter demolishing their constructions forcibly as a consequence the suit No. 1619 of 1999 was instituted in the court of Civil Judge (Junior division) Deoria. The order of temporary injunction was passed on 3. 8. 1999 directing the applicants and the opposite party No. 2 to maintain status quo on the spot and further the parties were restrained from demolishing the construction. The contesting opposite party started completing a wall across the common lane between his house and adjacent house of the applicants with the help of anti social elements who could not succeed. A First Information report was lodged under Sections 143, 342, 504. 506, 448, 427 I. P. C. P. S. Kotwali, District deoria, which was registered at case crime No. 517 of 1999 where the opposite party No. 2 his son and one Budhwal Yadav was arrayed as the accused. As a counterblast the opposite party no. 2 filed an application in the last week of June, 1999 before the S. D. M Deoria. On the basis of aforesaid application, case No. 177 of 1999 under Section 133 Cr. P. C. P. S Gauri Bazar was commenced to the court or S. D. M. Deoria and the inspector submitted his report against the applicants, which has been annexed as annexure No. 8. to this Application. The S. D. M. Deorai passed a conditional order on 7. 7. 1999 under Section 13 Cr. P. C. on the basis of aforesaid report, which is impugned in this Application. The applicants were called upon to remove the constructions from the alleged public way within a period of one week or appear before him on 15. 7. 1999 or show caus. The applicants filed written statement on 3. 8. 1999 apprising the S. D. M that the public way shown in the report of Inspector Kotwali dated 5. 7. 1999 does not exist and the land shown as public way is in fact-private land of the applicants. It was opposite party No. 2 who had attempted to block the passage of the applicants by use of force. The opposite party No. 2 filed an application under Section 142 Cr. P C. before the S. D. M. Deoria with the prayer that local police be directed to clear the public way for the benefit of general public. An objection was filed on behalf of the applicants that no case for exercise of power under Section 142 cr. P. C. exists. However, the order was passed on 18. 8. 1999 on the application moved by the opposite party No. 2, which is also impugned and annexed as annexure No. 13 to this application. The submission on behalf of the applicants is that the order dated 18. 8. 1999 under section 142 Cr. P. C is in fact an order in the nature of interim order because on perusal, it clearly mentions that an inquiry is beings conducted till the result of the inquiry comes, the public nuisance is liable to be removed forthwith otherwise it will be removed by use of force.
( 4 ) I have perused the entire record and counter and rejoinder affidavits. Reliance has been placed on a number of decisio
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