Ram Baboo and Others vs Sher Singh and Another

V.N. Varma, J.—This revision is directed against an order dated 27-9-1973 passed by Additional Sessions Judge, Agra, in a case u/s 133 Code of Criminal Procedure.

O. P. No. 1 (Sher Singh) is the owner of a certain property in which the applicants live as tenants. O. P. No. 1 moved an application on 16-10-1971 u/s 133 Code of Criminal Procedure mentioning therein that the property was in dangerous condition and was likely to fall down any moment, and this may cause injury to lives and properties of persons living nearby. The Magistrate concerned sent that application to police for inquiry. The police report showed that the property in question was in dangerous condition. The Magistrate, therefore, passed a conditional order and called upon the applicants to show cause why the house in question be not demolished. The applicants appeared before the Magistrate on 14-9-1972 but O. P. No. 1 was absent. The Magistrate, therefore, dismissed his application on that very date. The result was that the proceedings u/s 133 Code of Criminal Procedure stood dropped. O. P. No. 1 then moved an application for revival of the proceedings u/s 133 Code of Criminal Procedure. That application was dismissed on 20-2-73 on the ground that there was no provision for revival of proceedings dropped u/s 133 Code of Criminal Procedure.

It appears that while the application for revival of the proceedings was still pending, O. P. No. 1 moved a fresh application u/s 133 Code of Criminal Procedure on 11-2-1973. Probably he tiled a fresh application because he realised that his earlier application for revival or the dropped proceedings u/s 133 Code of Criminal Procedure was not maintainable under law. The learned Magistrate, however, took no action on the fresh application filed on 17-2-1973 and instead revived the proceedings which he had dropped earlier. While so reviving the earlier proceedings, he restored the conditional order that he had passed earlier. The applicants felt aggrieved with the order passed by the learned Magistrate and went up in revision to the court of Sessions. The Sessions Judge rejected their revision and hence the present revision.

I have heard the learned Counsel for the applicants at some length and after doing so I am firmly of the view that this revision must be allowed. In the entire Code of Criminal Procedure, there is no provision for revival of a proceeding u/s 133 Code of Criminal Procedure which has already been dropped. In the absence of any such provision, the learned Magistrate was totally unjustified, in reviving the dropped proceedings u/s 133 Code of Criminal Procedure. The learned Sessions Judge was also of this very view, but despite that he did not interfere with the order passed by the learned Magistrate on the ground that the revival of the proceedings was as good as taking action on the fresh application filed by O. P. No. 1. He also felt that this course of action would not cause prejudice to the applicants. The view taken by the learned Sessions Judge does not seem to me to be correct and I cannot, therefore, endorse it. Under law the proceedings u/s 133 Code of Criminal Procedure once dropped, possibly could not have been revived. To say that no prejudice would be caused to the applicants in case those proceedings stood revived, would not be correct. O. P. No. 1 had already filed a fresh application for taking action u/s 133 Code of Criminal Procedure and the learned Magistrate should have proceeded with that application. It is true that by taking fresh action on the new application, some time would have been taken before the proceedings matured, but this was not a thing which should have weighed with the courts below in doing a thing which they could not have legally done. The order passed by the Court below cannot, therefore, be allowed to stand.

In the result, 1 allow the revision and set aside the orders passed by the Courts below reviving the dropped proceedings u/s 133 Code of Criminal Procedure. It will be open to the Magistrate to take action on the application dated 17-2-73 which O. P. No. 1 has filed u/s 133 Code of Criminal Procedure.

Let the record of the case be sent down immediately.