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Sibte HusaIn and anr. Vs. Emperor - Court Judgment

LegalCrystal Citation
Subject Criminal
CourtAllahabad
Decided On
Reported inAIR1937All785
AppellantSibte HusaIn and anr.
RespondentEmperor
Excerpt:
- .....continued for some time owing to applications for transfer and other matters and eventually orders were passed by a magistrate who had taken no part in the previous proceedings. he merely inspected the locality and heard some arguments and then passed an order to the effect that residents who resided in the village and who had their houses situated on each side of the lane should not be obstructed from using the lane for bona fide purposes. he directed chaihsukh not to obstruct or prevent the rightful use of the lane. he purported to pass this order under the provisions of section 147, criminal p.c., ali ahmed made an application to the sessions judge that this order should be set aside in revision and that an order should be passed under the provisions of section 133, criminal.....
Judgment:
ORDER

Allsop, J.

1. This is a reference by the learned Sessions Judge of Mainpuri. An application was made to the police who reported to the Magistrate that there was a danger of a breach of the peace over a dispute about some constructions which had been made in a place which was alleged to be a public lane, and suggesting that an order should be passed under the provisions of Section 147, Criminal P.C., After the report had been made, a private person, Ali Ahmed, made an application that proceedings should be taken under Section 133, Criminal P.C., The Magistrate then passed an order that he would proceed under the section and not under Section 147. Bohra Ghainsukh who had made the constructions went to the Magistrate's Court in answer to a notice and stated that the lane was not public property but was the property either of himself or of the zamindar. Proceedings continued for some time owing to applications for transfer and other matters and eventually orders were passed by a Magistrate who had taken no part in the previous proceedings. He merely inspected the locality and heard some arguments and then passed an order to the effect that residents who resided in the village and who had their houses situated on each side of the lane should not be obstructed from using the lane for bona fide purposes. He directed Chaihsukh not to obstruct or prevent the rightful use of the lane. He purported to pass this order under the provisions of Section 147, Criminal P.C., Ali Ahmed made an application to the Sessions Judge that this order should be set aside in revision and that an order should be passed under the provisions of Section 133, Criminal P.C., The learned Sessions Judge has accepted this suggestion and has referred the matter to this Court for orders accordingly.

2. The Magistrate has explained that he was not aware that an order had been passed by his predecessor that the proceedings should be under Section 133 and not under Section 147, Criminal P.C., It appears that there was a mistake on his part, but that alone is not sufficient to justify interference by this Court. I do not think that any private person has a right to insist that a Magistrate shall pass orders under Section 133, Criminal P.C., Whether such orders should be passed is a matter of discretion for the Magistrate. If he does not choose to interfere, the party aggrieved has his normal remedy in the Civil Court. It is true that the Magistrate does not appear to have made any inquiry under the provisions of Section 139-A, Criminal P.C., into the question whether Chainsukh's claim was frivolous or not, but it seems to me that the provisions that an inquiry should be held are intended to protect the rights; of a person against whom it is proposed to, pass an order under Section 133, Criminal P.C., They are not intended to enable any per. son complaining of a construction to compel the Magistrate to hold an inquiry into the rights of the parties concerned.

3. In my opinion there is no justification for interference in this case. The applicants in revision can obtain an order doubtless from the Civil Court if they have any rights in the matter. I refuse to interfere. The papers may be returned.


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