Judgment Summary — H.N. Seth, J.

Factual and Procedural Background

Civil and Session Judge, Allahabad made a reference recommending that an order dated 19th of September, 1971 passed by the Additional City Magistrate, Allahabad, be set aside.

On the basis of a report by the Mukhya Nagar Adhikari, the City Magistrate passed an order under section 133 Cr. P.C. on 29th July 1971 directing the demolition of a portion of a building in house no. 115, Mori Daraganj, Allahabad. Objectors named in the record — Sarvasri Doodh Gir, Munno Gir and Devi Prasad — filed objections claiming inter alia that the portion was not in a dangerous condition and should not be demolished.

The Magistrate conducted a local inspection and, as described in the opinion, concluded that the building was in a dangerous condition. The Magistrate then made the preliminary order dated 29th July 1971 absolute by an order described in the text as dated 29th September 1971 and directed Devi Prasad and others to remove the building within one week, failing which the Court would cause demolition.

Devi Prasad and others filed a revision before the Civil and Sessions Judge who recommended that the order dated 19th September 1971 should be quashed. The present opinion addresses that reference and the lawfulness of the Magistrate's procedure.

Legal Issues Presented

1. Whether the Magistrate could make the preliminary order under section 133 Cr. P.C. absolute without taking evidence in the manner required by section 137 Cr. P.C., after the objectors had appeared and shown cause.
2. Whether a local inspection under section 539-B Cr. P.C. may be used by the Magistrate to decide the matter on the basis of the Magistrate's personal observation when the stage for receiving evidence from the parties had not arisen.

Arguments of the Parties

Objectors (Sarvasri Doodh Gir, Munno Gir, Devi Prasad)

• The portion of the building in house no. 115, Mori Daraganj was not in a dangerous condition.
• Consequently, that portion should not be demolished.

Mukhya Nagar Adhikari / City Magistrate (as recorded in the opinion)

• The Mukhya Nagar Adhikari made a report that led to a preliminary order under section 133 Cr. P.C. directing demolition.
• The Magistrate conducted a local inspection, concluded the building was dangerous, and made the preliminary order absolute, directing demolition if the objectors did not effect removal within one week.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court's analysis is grounded in the statutory scheme of the Criminal Procedure Code as set out in the opinion:

1. The court observed that section 137 Cr. P.C. requires that where a person to whom a notice has been issued appears and shows cause, the Magistrate is to take evidence "as in a summons case" in order to decide the matter. In the present matter the objectors did appear and showed cause.
2. Instead of taking evidence in the manner mandated by section 137, the Magistrate performed a local inspection and relied on that inspection to conclude that the house was in a dangerous condition and to make the preliminary order absolute.
3. The court relied on the principle, as stated in the opinion, that a local inspection under section 539-B Cr. P.C. may be made only for the purpose of properly appreciating evidence produced in the case; it cannot be used to enable the presiding officer to decide the case on the basis of his personal knowledge alone.
4. Because, in this case, the stage for producing evidence by the parties had not arisen, the court found there was "absolutely no occasion" for the Magistrate to make a local inspection under section 539-B for the purpose of deciding the dispute.
5. The court concluded that the Magistrate disposed of the proceedings under section 133 Cr. P.C. without complying with the procedural requirements of section 137 Cr. P.C., and that this failure rendered the Magistrate's order unlawful.

Holding and Implications

Holding: The reference is accepted and the order dated 19th September, 1971 passed by the Additional City Magistrate, Allahabad, is set aside.

Implications and direct effects:

• The Magistrate is directed to re-decide the case in accordance with law after following the procedure prescribed under section 137 Cr. P.C., which requires taking evidence as in a summons case when a person appears and shows cause.
• The decision directly affects the parties by setting aside the impugned order and requiring the Magistrate to proceed again following the statutory procedure; the opinion does not purport to lay down any broader precedent beyond these statutory applications.

Reference accepted.