S.133 CrPC | Evidence Adduced In Proceedings For Removal Of Nuisance Needs To Be Reliable, Not Conclusive In Nature: Allahabad High Court

The Allahabad High Court has held that the proceedings for removal of nuisance under Section 133 CrPC are summary in nature and requires “any reliable evidence” not conclusive evidence for deciding the application regarding alleged nuisance. Dr. Justice Ajay Kumar-II held,“The proceedings under section 133 of Cr.P.C. are summary in nature and are meant for the cases of imminent danger to the public tranquility and peace and the same should not be used or rather misused to scuttle the valuable right of owner of property and that is why, the legislature has in its wisdom used the words "any reliable evidence" in support of such denial, in the event and in case of which he shall stay the proceedings until the matter of the existence of such right has been decided by a competent Court as provided under Section 137(2) of Cr.P.C., which is certainly having a different import and connotation than the word 'conclusive evidence'.”Respondent no. 2 filed an application under Section 133 for removal of the alleged encroachment (ladder) by the petitioner from the public pathway. After some back and forth in proceedings, petitioner submitted his objections before the SDM. The SDM sought further report from the Revenue Inspector after which an order was passed directing the petitioner to remove encroachment. Petitioner's criminal revision against the order of the SDM was dismissed by the Sessions Judge, Kushi Nagar. Accordingly, the petitioner approached the High Court. It was pleaded that the pathway between the property of the petitioner and respondent no. 2 was not used by public and had rainwater flowing through it during monsoon. Accordingly, it was urged that there was no encroachment by the petitioner. Referring to the decision of the Apex Court in Municipal Council, Ratlam vs. Vardhichand and Ors. and the Allahabad High Court in Wali Uddin v. State of U.P., the Court observed that while Section 133 CrPC empowered the executive magistrate to order removal of encroachment or nuisance from public pathway, he must see whether the person who is alleged to be in contravention of law has produced “any reliable evidence” to prove his case. It held that conclusive evidence for the purpose of determination under Section 133 is not mandatory and cannot be required by the executive magistrate. The Court observed that the petitioner himself had admitted to the existence of the pathway. It held that once there is admission of existence of pathway and rainwater flowing through it, there cannot be encroachment on it.Noting that the Revenue Authorities had found that the stairs were constructed on the pathway between the two houses, the Court held that petitioner had caused obstruction on public pathway. “When the record of the present case is perused in the light of the above principles of law with respect to a petition instituted under section 133 Cr.P.C., it is clear that petitioner himself has admitted in his petition the existence of two ft. wide street/gali on the spot. Therefore, in the present case, in view of the above admission of existence of public way, the Executive Magistrate was not under obligation to hold an inquiry as required under section 137 Cr.P.C.”Accordingly, the Court held that there was no reason to interfere with the order of the SDM. The petition was dismissed. Case Title: Shambhu Singh v. State of U.P. and anotherClick Here To Read/Download Order

S.133 CrPC | Evidence Adduced In Proceedings For Removal Of Nuisance Needs To Be Reliable, Not Conclusive In Nature: Allahabad High Court

Upasna Agrawal

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S.133 CrPC | Evidence Adduced In Proceedings For Removal Of Nuisance Needs To Be Reliable, Not Conclusive In Nature: Allahabad High Court

Upasna Agrawal

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