RAM DULAR Vs. STATE OF U P
LAWS(ALL)-1980-4-49
HIGH COURT OF ALLAHABAD
Decided on April 21,1980

RAM DULAR Appellant
VERSUS
STATE OF UTTAR PRADESH Respondents


Cited Judgements :-

SATYA PRAKASH VS. STATE OF U P [LAWS(ALL)-1983-4-5] [REFERRED TO]
CHHEDA VS. PADMAKAR TRIPATHI [LAWS(ALL)-1984-1-25] [REFERRED TO]
ISHAR SINGH VS. VARINDER KAUR [LAWS(P&H)-1986-5-44] [REFERRED TO]
SHRAVAN KUMAR AND SONS VS. STATE OF UTTARAKHAND AND ANR. [LAWS(UTN)-2011-8-73] [REFERRED TO]


JUDGEMENT

P. N. Bakshi, J. - (1.)An application under Sec. 133 Cr. P. C. was filed by Opp-Parties Markandey and others. A conditional order was issued. Ram Dular filed an objection denying the existence of the Public Right. The Magistrate considered that objection and repelled it. Thereafter, he proceeded under Sec. 138 Cr. P. C. He recorded the "evidence of the parties and also made a personal inspection of the spot. After that he passed an order on 6-7-1979 directing Bam Dular to remove the obstruction within 15 days from the Public road. Aggrieved thereby a revision was filed before the Sessions Judge, Varanasi, which has been dismissed on 9th August, 1979. Hence this application under Sec. 482 Cr. P. C. I have heard learned counsel for the parties and have also perused the impugned order. The applicant's counsel has urged that there is no provision in law for the Magistrate to have made a personal local inspection, proceedings under Chapter X of the Code of Criminal Procedure. Section 139 only empowers a Magistrate conducting an inquiry under Sees. 137 or 138 Cr. P. C. to direct a local investigation to be made by a person whom he considers fit. Under Sec. 140 Cr. P. C. the Magistrate has to furnish such person with such written instructions as may seem necessary for his guidance. Thereafter such person has to proceed to the spot and submit his report which is to be read in evidence. It is clear that on principles of natural justice, both parties will have a right to file objections to the report of such local inspection, which would be decided by the Magistrate himself, while con ducting his inquiry under Sec, 138 Cr. P. C. There is no provision in Chapter X Cr. P. C. , which empowers the Magistrate to conduct such an inspection by himself. In my opinion, Sees. 133 to 143 lay down the complete procedure which has to be followed by the Magis trate while conducting cases of public nuisance for the purpose of maintaining public order and tranquillity. No pro vision is prescribed therein authorising a Magistrate to conduct a personal inquiry. In my opinion, therefore, an illegality was committed by the Magistrate in following this procedure and in being influenced in his decision, on the basis of his personal inspection. Of course, the rest of the evidence which have been led in the case under Sec. 138 Cr. P. C. by the parties is perfectly admissible. It is difficult to assess to what extent the trial court has been influensed by the personal inspection. In the instant case the inspection conducted by the Magistrate has to be ignored and the evidence led by the parties has to be reconsidered. These proceedings under Sec. 133 Cr. P. C. should be finally decided on the basis of the remaining evidence. If, however, the Magistrate considers it necessary he may also depute some suitable person to make the requisite investigation in accordance with law. In this view of the matter, this appli cation under Sec. 482 Cr. P. C. is allow ed. The impugned orders passed by the Courts below are hereby quashed, and the case is sent back to the S. D. M. Chakie, Varanasi for a re-decision on the basis of the already existing evidence excluding the result of the inspection conducted by the Magistrate. It is desirable in the interest of justice that this case should be diced3ed by some Magistrate, other than the Magistrate who has decided the case in the first instance. .


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