High Court of Judicature at Allahabad
Case Law Search
Kashi Nath v. State Of U.P. - CRIMINAL REVISION No. 884 of 1989  RD-AH 5704 (30 March 2007)
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.
Double Click on any word for its dictionary meaning or to get reference material on it.