Section 310 CrPC, which provides for local inspection, is applicable to proceedings under Section 133 CrPC, which deals with public nuisance. A Magistrate can make a local inspection in proceedings under Section 133 CrPC for the purpose of properly appreciating the evidence in the case, but the Magistrate cannot base his decision solely on the local inspection.

M.N.Shukla, J.

1. Doubting the correctness of the decision in Ram Dular v. State of U. P., 1980 AWC 325= 1980 ACrR 230 a learned single Judge of this Court referred the instant case, arising out of Criminal Misc. Petition under section 482 CrPC, to a larger Bench and that is how the matter has come before this Bench for adjudication. The question at issue involves the interpretation of section 310 of the Code.

2. The short facts are that on 1-6-1978 respondent No. 2 Sri Krishna Madhava Chaudhary moved an application before the City Magistrate, Etawah alleging that the three storeyed building situate in Mohalla Sewa Kali, Etawah city owned by the present applicant Satya Prakash and his two brothers was in a dilapidated condition, likely to fall down and cause injury to persons living or carrying on business in the neighbourhood or passing by and consequently the removal of the building was necessary. On this application the Magistrate called for a report from the Tahsildar, Etawah who inspected the spot and submitted his report dated 25-7-1978. After a perusal of the report the Magistrate passed a preliminary order under section 133 CrPC and issued notice to both parties to adduce their evidence. Besides recording the evidence the Magistrate after giving notice to the parties made local inspection on 5-8-1979 and incorporated his inspection note. THE applicant Satya Prakash and his two brothers filed written statements. While Satya Prakash and his brother Jai Kumar opposed the allegations made in the complaint, the other co-sharer, namely, Om Prakash supported the version of Sri Krishna Madhav Chaudhary, complainant. THE City Magistrate passed the final order in the case on 13-8-1979 whereby he confirmed the conditional order dated 2-8-1978 and directed Satya Prakash and his brother Jai Kumar to get the building demolished within a period of one month failing which it would be got demolished by the Nagar Palika, Etawah. THE present applicant Satya Prakash filed a revision which was rejected by the IV Additional Sessions Judge, Etawah and hence this application under section 482 CrPC, in this Court with a prayer that the orders passed by the City Magistrate and the IV Additional Sessions Judge, Etawah be quashed.

The principal contention urged on behalf of the applicant was that the City Magistrate, Etawah who was seized of the case under section 133 CrPC made local inspection of the building in question and made use of that inspection in coming to the conclusion that the building was in such a dilapidated condition that it was necessary to get it demolished. It was submitted that the City Magistrate had no jurisdiction to make local inspection and his entire judgment stood vitiated by the fact of its being based on the said inspection. In support of the argument the learned counsel for the applicant relied on a decision of this Court in Ham Dular v. State of U. P., 1980 AWC 325= 1980 ACrR 230. In that case the Magistrate who was seized of the matter under section 133 CrPC had made local inspection and then passed an order directing demolition of the property. The argument advanced before the learned single Judge in that case was that the Magistrate had no jurisdiction to make local inspection and his judgment was rendered illegal inasmuch as he was influenced by the local inspection made by him. This argument found favour with the learned single Judge with the result that he quashed the order by the Magistrate and remanded the case for fresh trial.

3. We have given our most anxious consideration to the decision in Ram Dular's case (supra) and we regret our Inability to agree with the rule laid down therein. It appears that section 310 of the Code of Criminal Procedure which provides for local inspection went unnoticed in that ruling. Section 310 falls in the Chapter " General Provisions As To Inquiries And Trials " and reads as follows :

"310. Local inspection-(1) Any Judge or Magistrate may, at any stage of any inquiry,