JUDGMENT Poonam Srivastava, J.
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 applicant's, 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 decisions. This Court in the case of Sukh Lal v. Dr. Brij Basi Lal and Ors. 1979 A.W.C. page 306 has held that where the constructions are long-standing and the situation does not call for an emergent action in such a case, the proper remedy for the parties is to enforce their rights in a civil court and not to take recourse to Section 133 Cr.P.C. I am in full agreement with the! aforesaid view the, provisions under Section 133 Cr.P.C are summery proceedings and the right and title can not be adjudicated in such proceedings. The public nuisance as contemplated under Section 133 Cr.P.C are such where there is an imminent danger to public at large and are to be resorted to ensure that, there is no danger to human life or public property Section 133 Cr.P.C. is intended to meet the situations of emergency wherein taking of an immediate action is necessary, if such a situation does not exist then recourse of the speedy and summary procedure should not be advented to. It has been admitted that the civil suit No. 1619 of 1999 is continuing and the order of temporary injunction is operative as such the S.D.M. Deoria was liable to stay his hand till disposal of the civil suit. On perusal of the impugned orders also do not show that the S.D.M. has applied his mind or expressed any such opinion that it is a case of extreme emergency where the power under Sections 133 and 142 Cr.P.C. is to be necessarily exercised as it has been done in the instant case. In the case of Brahrnanand Rai v. State of U.P. and Anr. 1991 A.C.C. page 259 it has been held that even thought civil suit was instituted after initiation of proceedings under Section 133 Cr.P.C. the Magistrate is liable to stay his hand and should not interfere in the proceedings under Section 133 Cr.P.C. but should have tasked the parties to get their rights declared by a competent court. The Apex Court in the case of Vacant Manga Nikumba and Ors. v. Baburao Bhikanna Naidu and Anr. 1995 Supp. (4) SCC 54 has laid down that the proceedings under Section 133 Cr.P.C are not intended to settle private disputes or a subsititute for civil proceeding. In the circumstance, there was no imminent danger and the Magistrate was liable to stay his hand from passing any orders in exercise of power under Section 133 Cr.P.C. In the circumstances, after going through the various decisions, it is clear that the opposite party No. 2 has invoked the jurisdiction under Section 133/142 Cr.P.C. to settle his private disputes as the civil suit which is pending and the interim injunction is still operative will take long time and the proceedings commenced was resorted as a short cut method.
5. For the reasons discussed above, I conclude that the learned Magistrate has over stepped his boundary in passing the impugned orders. He himself has clearly stated that the inquiries are still under progress in spite of it, an order has been passed to remove the so called nuisance. Learned counsel for the applicants has annexed a detailed map as well as photographs to demonstrate that it is not a public path, which will cause any public nuisance or hamper any right of the contesting opposite party. Looking to the facts and circumstances of the case, the orders dated 7.7.1999 and 18.81999 passed by the S.D.M. Deoria in Case No. 177 of 1999 and also proceedings in the aforesaid case pending in the court of S.D.M. Deoria are quashed. The parties are directed to maintain status quo and not to interfere in peaceful used and possession of the property in question till the rights of the parties are decided in the civil suit.