Court No. - 53
Case :- MATTERS UNDER ARTICLE 227 No. - 6564 of 2018 Petitioner :- Ramesh Respondent :- State Of U.P. And 6 Others Counsel for Petitioner :- Vijay Babu,Raghwendra Prasad Mishra Counsel for Respondent :- G.A.
Hon'ble J.J. Munir,J.
Heard Sri Raghwendra Prasad Mishra, learned counsel for the petitioner and learned A.G.A. appearing on behalf of the State.
This petition under Article 227 has been filed seeking to set aside the impugned order dated 18.08.2018 passed by the IIIrd Additional District and Sessions Judge, Basti in Criminal Revision No. 154 of 2016 allowing the revision aforesaid preferred by respondent nos. 4 to 7 and setting aside an order dated 21.09.2016 passed by the Sub Divisional Magistrate, Haraiya, District Basti, under Section 133 Cr.P.C. making a conditional order dated 24.07.2013 absolute ordering constructions from a customary and public way to be removed by respondent nos. 4,5,6 and 7, on an application filed by the petitioner. The learned Sessions Judge has ordered the Sub Divisional Magistrate to decide the application afresh after following the procedure prescribed by Section 137(2) Cr.P.C.
The submission of the learned counsel for the applicant is that the road in question is public property and the same is well proved by the evidence on record which respondent nos. 4 to 7 have encroached illegally. The Sub Divisional Magistrate has proceeded under Section 133(1) Cr.P.C. directing removal of encroachment on valid grounds, and, in accordance with law.
It is submitted that proceedings under Section 133 Cr.P.C. are emergent in nature and are undertaken to bring immediate relief. The order of the learned Sessions Judge, remanding proceedings to the Magistrate, have sent those proceedings on a course of indefinite delay without any good reason in law to interfere with the Magistrate's order that is perfectly valid.
The learned A.G.A. has supported the order impugned and submits that the petition may not be admitted to hearing. He has urged that the order impugned is one of remand and, therefore, this Court, may not interfere in exercise of its jurisdiction under Article 227 with a mere order of remand.
A perusal of the impugned order passed by the learned Sessions Judge shows that he has taken exception not to the conclusions drawn by the Magistrate but to the procedure adopted to reach those conclusions. The disapproval of the learned Sessions Judge is not about the decision but about the decision making process. It is trite law that a proceeding under Section 133 Cr.P.C. are required to be determined as a summons case by virtue of Section 137 (2) Cr.P.C. that postulate evidence being recorded on oath by witnesses, whereas in the present case, the Magistrate has merely proceeded on the basis of police reports, Tehsil reports and even on his personal inspection. The learned Sessions Judge has rightly held that the mandatory provision prescribed for the determination of a case under Section 133(1) Cr.P.C. have not been adhered to by the Magistrate. The directions issued by the learned Sessions Judge by the order of remand are unexceptionable. Even otherwise, the impugned order is one of remand wherein this Court, in exercise of jurisdiction under Article 227 of the Constitution, would be loath to interfere.
In the result, this petition fails and is dismissed. However, looking to the facts and circumstances of the case, it is directed that the proceedings of case No. 138/11/2013, Ramesh vs. Chhedan, under Section 133 Cr.P.C. shall be expedited and decided positively within a period of two months next from the date of the receipt of the certified copy of this Order.
Let a copy of this order be communicated forthwith by the office to the Sub Divisional Magistrate, Haraiya, District Basti.
Order Date :- 7.9.2018 Deepak /BKM/-