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‑‑ Ss. 439, 439‑A & 561‑A‑Scope of sections‑High Court, jurisdic tion of‑Magistrate's order assailed by petitioner in revisional proceedings under S. 439‑A before Sessions Judge and such Judge passing order thereon, order of Sessions Judge could not be challenged under provision of S. 439‑High Court, however, possessed of jurisdic tion to interfere with such order under S. 561‑A and petition under S. 561‑A, held, maintainable.

(b) Criminal Procedure Code (V of 1898)‑

‑‑ S. 133‑Public nuisance, removal of‑Section 133 deals with public nuisances and not with private nuisances‑Application for removal of obstruction on private path, held, not maintainable under S. 133. [Public-muisance].

Bahia Ghaur Chander v. Baglay A I R 1952 Oudh 1930 and Sakina v. Habibur Rehman P L D 1968 Pesh. 21 ref.

Bahadur v. Mudhai P L D 1963 Lah. 269 ; Hayat Gul v. Zamir P L D 1966 Pesh. 9; State v. N. A. Farooqi P L D 1969 Lah. 680; Mahia Khan v. Fateh Khan 1974 P Cr. L J Note 13 at p. 8 and Ghulam Rasool v. State 1968 P Cr. L J 927 held not relevant.

Mehta W. N. Kohli for Petitioner.

Abdul Hafeez Amjed for Respondents Nos. 1 and 2.

Munawar Ahmad Mirza for A.‑G. for the State.

Date of hearing : 31st October 1978.

The relevant facts leadings to this petition under section 439/561‑A are that the petitioner Durrani had filed an application under section 133 of the Criminal Procedure Code before the Court of Assistant Commissioner, Quetta stating that the respondents Nos. 1 and 2 had closed a common way existing between his house and that of the respondents in Killi Almo. He requested for removal of the unlawful obstruction from that way'.

2. However the Assistant Commissioner transferred the application to the Honorary Special Magistrate, Quetta for disposal according to law.

3. The learned Honorary Magistrate called upon the respondents Nos. 1 and 2 to file their replies and they did so.

4. It was said by the respondents Nos. 1 and 2 that with consent of the parties the learned Magistrate had inspected the site and recorded statement of Aukhwand Muhammad Ishaq as Court witness. Consequently keeping in view the site and statement of Aukhwand Muhammad Ishaq he dismissed the application.

5. Against this order the petitioner had filed a revision petition under section 439‑A, before the Sessions Judges, Quetta, on third of December 1977, which was transferred to the learned Additional Sessions Judge, Quetta for disposal.

6. The learned Additional Sessions Judge upheld the decision of the Magistrate First Class and dismissed the revision petition.

7. These two orders the petitioner has challenged before his Court under section 439/561(A) of Cr. P. C.

8. Mr. W. N. Kohli Advocate appeared for the petitioner. Mr. Abdul Hafeez Amjad represented respondents Nos. 1 and 2. Mr. Munawar Ahmad Mirza appeared for the learned Advocate‑General.

9. At the outset it was contended by Mr. Munawar Mirza that the petition itself moved under section 439, Cr. P. C. before this Court was not maintainable as the petitioner had already exhausted the right of revision before Sessions Court under section 439‑A of the Criminal Procedure Code. Subsection (4) of this section indeed puts such embargo. It says that nothing in the section shall be deemed to authorise the High Court to entertain any proceeding in revision with respect to the order made by Sessions Judge. The petitioner having assailed the order of the learned Magistrate before the Session, Judge. Quetta by way of revision under A section 439‑A and the learned Sessions Judge having passed an order there on the order passed by the Sessions Judge indeed could not be challenged under the provisions of section 439 of the Criminal Procedure Code. However this position of law was not disputed by Mr. Kohli. Indeed he had no other way to do.

Mr. Kohli then submitted that he had besides requested for relief under section 561‑A of the Criminal Procedure Code in his petition. Indeed ambit of section 561‑A of the Criminal Procedure Code is broad and wide. The section says nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code or to pre‑event abuse of the process of any Court or otherwise to secure the ends of justice. I therefore agree with Mr. Kohli and hold that within its inherent powers the High Court has jurisdiction to interfere with the orders of the Sessions Judge where ever passed under section 439‑A, Criminal Procedure Code. The petition under section 561‑A, Cr. P. C. is therefore maintainable.

10. Mr. Kholi then vehemently .attacked decisions of the Honorary Magistrate and the learned Additional Sessions Judge. The learned counsel urged that the trial Court had not properly observed the procedure laid down under sections 133, 138 and 139‑A, Criminal Procedure Code. He stressed that non‑compliance of the mandatory provisions of these sections made both the orders illegal. In support of his contention Mr. Kohli has made reliance on cases reported in :‑

(1) P L D 1963 Lah. 269.

(2) P L D 1966 Pesh. 9.

(3) P L D 1969 Lah. 680.

(4) 1974 P Cr. L J Note 13 at p. 8.

(5) P L J 1973 Lah. 26( )

(6) 1968 P Cr. L J 927.

However these authorities are neither relevant nor beneficial to the petitioner.

11. On the other hand Messrs Abdul Hafeez Amjad and Munawar Ahmad Mirza vehemently repudiated the contention of Mr. Kholi. The learned counsel contended that section 133, Criminal Procedure Code deals with public nuisances only and not with private nuisances. So the application for removal of obstruction on the private path would not lie under section 133, Cr. P. C. the learned counsel stressed.

12. I without hesitation agree with contentions raised by the respondent's counsel.

13. The plain reading of Chapter X of the Criminal Procedure Code establishes that section 133, Cr. P. C. deals with public nuisances and has nothing to do with the private disputes.

14. Case of Bahia Ghaur Shander v. Baglay (A I R 1952 Oudh 1930) is indeed relevant with this case. It was held therein that "whatever the rights of two parties be it is clear that there dispute is a question of private rights and has nothing to do with Chapter X of Criminal Procedure Code. I even find any reference on the file to the question of a public nuisance. It is purely a matter for the civil Court and the District Magistrate's order was without jurisdiction".

15. The same view was taken in case of Sakina v. Habibur‑Rehman (P L D 1968 Pesh. 21). It was held "that section 133 empowers the Magistrate(s) to order or the removal of an obstruction from any way or from any public place and before it could be applied there must be a finding with the obstruction in question is stated on a way it may be lawfully used by the public or on a public place.

16. In view of such circumstances an unlawful obstruction to way, river or channel which is or may be lawfully used by the public or from any public place could be only removed under section 133, Cr. P. C. but not other obstructions.

17. On this score alone I find that the application moved by the petitioner before the Court of Assistant Commissioner was not maintainable.

18. The learned Magistrate as well as the learned Additional District Judge were justified in deciding so.

19. It was next contended by Mr. Kohli that the petitioner was not afforded opportunity of producing his evidence to show that it was a public way. Messrs Amjad and Mirza rightly pointed out that the application itself reveals that it was a private way between the house of the petitioner and that of the respondents.

20. Mr. Kohli has placed much stress on the words "as well others". Indeed the petition is not happily worded. The three words in no way prove that it was a public street or used as public place. The street being a private one its obstruction could not be removed with aid of the provisions of section 133 or the other sections in Chapter X. , This objection of Mr. Kohli is repelled accordingly.

21. The cumulating effect of my discussions is that the application moved by the petitioner under section 133, Cr. P. C. was not maintainable before the Magistrate at all. Indeed it was in respect of a private street, where private rights of parties were involved.

22. No relief, therefore could be given to the petitioner even under the inherent powers of this Court.

23. In result the petition stands dismissed.

S. A. H. Petition dismissed.

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