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KASHI NATH versus STATE OF U.P.

High Court of Judicature at Allahabad

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Kashi Nath v. State Of U.P. - CRIMINAL REVISION No. 884 of 1989 [2007] RD-AH 5704 (30 March 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.11

Criminal Revision no. 884 of 1989

Kashi Nath Vs State of U.P. and another.

...........

Hon'ble V.D.Chaturvedi, J.

Heard Sri Virendra Singh for the revisionist and the learned A.G.A. for the State. Sri Rajeev  Sharma the counsel for the respondent no.2 is not present even on the revision of the list. I have perused the relevant material available on the record.

The relevant facts are that one Ram Dhani (respondent No.2) gave an application against the revisionist Kashi Nath that the revisionist was running a press machine in the adjoining house; that due to the operation of the said press machine a wall of  the complainant's house  had weakened  and that  the press was  injurious to the physical comforts of the members of the house as  also to the comforts of the  members of the locality. After the conditional order u/s 133 Cr.P.C. was passed,  the notice was  issued to the revisionist,  who  filed his objection denying any type of injury to the comforts of any person, and added  that the act complained of was not the public nuisance. The revisionist Kashi Nath in support of his objection produced three witnesses (1) Ghan Shyam Das (2) Bhagirathi Prasad and (3) Sri Beni Prasad. These witnesses stated that they were residing in the same  locality but  they never felt any discomfort due to the said press machine.

The Magistrate,  after considering the reports  of Nagar Swasthya Adhikari, and  of A.D.M.(Protocol)  and after considering the objections  of the revisionist as well as  the evidence adduced in support of such objection, drew the conclusion that the act complained of was  within the purview of public nuisance given in  Section 133 Cr.P.C. He  directed to proceed further  and  ordered the complainant Ram Dhani (respondent No.2) to produce his evidence. It is against this order dated 30.3.1989 that this revision has been  filed.

It is not disputed that the conditional order passed under section 133 Cr.P.C. for the removal of the press was served upon the revisionist. It is further not disputed  that the revisionist filed his objection and produced three witnesses in support of his objection. The  impugned order was passed at the stage  enumerated in sub-section (2) of Section 137 of Cr.P.C. At that stage the Magistrate could have formed any one of the  following three opinions:

1.That the evidence led by the revisionist in support of his objection was  reliable evidence.

2.That the evidence so led by the revisionist in support of his objection was not reliable evidence.

3.That there was  no evidence in support of the objection of the revisionist.

In the first situation  (where the evidence led was reliable evidence)  it was incumbent upon him to stay the proceedings u/s 133 Cr.P.C. until the matter of existence of such right was decided by a competent court..

In second and third situations  (where  the evidence led  was either not reliable or where no  evidence was led by the revisionist)  the Magistrate  could have ordered to proceed under section 138 Cr.P.C.

The impugned order directing the complainant Ram Dhani (respondent no.2) to produce his evidence is a direction to proceed under section 138 Cr.P.C.

The Magistrate in the impugned order did not express  at all that the evidence of the three witnesses (1) Ghan Shyam Das (2) Bhagirathi Prasad and (3) Sri Beni Prasad was not reliable.  In case the revisionist's evidence was not reliable in Magistrate opinion, the  Magistrate, while passing the impugned order,  was under the legal duty to give the reasons for  holding that the revisionist's  evidence was  not reliable.

The Magistrate neither  expressed  that the revisionist's evidence  was not reliable nor he has assigned  any reason for holding such evidence  unreliable.

The powers conferred on the Magistrate to proceed  or not under section 138 Cr.P.C. is not an arbitrary power but is a judicial power  which had to be exercised on reasons. The Magistrate has not given any such reason, as stated above.  The impugned order dated 30.3.89, therefore,  cannot be allowed to sustain.

The impugned order is, therefore, set aside allowing this revision as above. The Magistrate may, if he chooses so,  pass the order afresh in accordance with the discussion made above.

Dt.30.3.2007

Sh


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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