Court No. - 28
Case :- CRIMINAL MISC. WRIT PETITION No. - 17073 of 2011 Petitioner :- Jeevdhar And Others Respondent :- State Of U.P. And Others Counsel for Petitioner :- Rama Nand Pandey,Pradeep Narain Pandey Counsel for Respondent :- Govt. Advocate,Shashi Prakash Mishra,Tripathi B.G.Bhai,Z.A. Siddiqui
Hon'ble Umesh Chandra Tripathi,J.
Heard learned counsel for petitioners, learned counsel for respondent and learned A.G.A. for State.
This petition has been filed to issue a writ of certiorari to quash the order dated 18.08.2011 passed by Special Judge (Essential Commodity Act), Basti in Criminal Revision No. 922/2007 (Prabhunath Vs. State of U.P. and others) dismissing the revision against order dated 11.07.2007 passed by Sub Divisional Magistrate, Mehdawal District Sant Kabir Nagar under Section 133 Cr.P.C. Vide order dated 11.07.2007 passed by Sub Divisional Magistrate, petitioners were directed to remove obstruction made by them on Gata No. 159/1.
Learned counsel for petitioners contended that before passing the order dated 11.07.2007, learned Sub Divisional Magistrate has not issued conditional order under Section 133(1) Cr.P.C. requiring the petitioner to show cause, why order should not be made absolute. He further contended that without passing the conditional order under Section 133(1) Cr.P.C., order under Section 133 Cr.P.C. cannot be made absolute.
Learned counsel for opposite party and learned A.G.A. contended that earlier conditional order was passed by Sub Divisional Magistrate. Against that order, petitioners have filed revision, which are allowed and in compliance of revisional order, impugned order dated 11.07.2007 has been passed by Sub Divisional Magistrate. In this case, it was not necessary for him to pass conditional order under Section 133 (1) Cr.P.C.. Petitioners have opportunity to make objection before Sub Divisional Magistrate but they could not avail. Accordingly there is no illegality in the impugned order passed by learned Magistrate.
From the perusal of order dated 11.07.2007 passed by Sub Divisional Magistrate, it is evident that before passing of this order, Magistrate has not passed any conditional order under Section 133(1) Cr.P.C. Learned Magistrate has passed the impugned order in compliance of direction of order passed by revisional court. Merit of the case was not considered by him.
In view of above, order dated 11.07.2007 passed by learned Magistrate as well as order dated 18.08.2011 passed by Special Judge (Essential Commodity Act), Basti are not in accordance with the provision of Section 133 Cr.P.C. and liable to be set aside.
Accordingly, order dated 11.07.2007 passed by Sub Divisional Magistrate and order dated 18.08.2011 passed by Special Judge (Essential Commodity Act) in revision are hereby set- aside.
Learned Sub Divisional Magistrate is directed to pass a fresh order in accordance to provision of Section 133 Cr.P.C. and decide the proceeding under Section 133 Cr.P.C. according to law expeditiously preferably within six months.
In the result, instant writ petition is allowed. Order Date :- 30.4.2018 Sharad/-