Court No. - 53
Case :- MATTERS UNDER ARTICLE 227 No. - 6926 of 2018 Petitioner :- Kanti Devi Respondent :- State Of U.P. And Another Counsel for Petitioner :- Ashish Kumar Srivastava Counsel for Respondent :- G.A.
Hon'ble J.J. Munir,J.
Heard the learned counsel for the petitioner and the learned AGA appearing for the State.
This petitioner under Article 227 has been filed seeking to stay the effect and operation of of order dated 20.08.2018 passed by the District & Sessions Judge, Court No.10, Mathura in Criminal Revision No.272 of 2015.
An order under Section 133 CrPC has been made absolute vide order dated 21.07.2015 passed in Case No.29 of 2014 and Case No.22 of 2015 to which Smt. Kanti Devi, the petitioner is the first party and Om Prakash son of Pitambar is the second party. By the order absolute the Magistrate has directed removal of a wall vide order dated 21.07.2015 that is said to be obstructing a public way.
Learned Sessions Judge has reversed the said order in Criminal Revision No.272 of 2015 on ground that the road in question is not a public street as it has not been so declared under the UP Municipalities Act in exercise of statutory powers under Section 212 of the said Act. The Court has perused the order impugned passed by the learned Sessions Judge. While it may not be very sound in law to say that in order to attract the Magistrate's jurisdiction under Section 133 CrPC the street has to declared a public street/public road under the UP Municipalities Act, a perusal of the order passed by the SDM shows that the Magistrate has not followed the mandatory procedure prescribed for determining a case under Section 133 CrPC in that, that he was required to decide the said case as a summons case by recording evidence of witnesses in the witness box. This is the mandatory requirement incumbent upon the Magistrate dealing with a matter under Section 133 CrPC going by the provisions of Section 138(1) CrPC. This, the Magistrate has not done. He has acted on evidence which certainly does not qualify for the manner prescribed to decide a case as a summons case envisaged under Section 251 CrPC. Thus, the order passed by the Magistrate suffers from an error going to the root of the matter vitiating his order. Accordingly, for reasons very different than those assigned by the learned Sessions Judge, this Court concurs in the conclusion reached by him that the order passed by the Magistrate ought to be set aside.
In this view of the matter this petition fails and is dismissed in limine.
Order Date :- 18.9.2018 Shahroz