Part II: Section 133 of the CrPc vis-à-vis Barabanki Mosque Demolition case
Part I of the blog can be accessed here.
The Barabanki Mosque Demolition: Analysis from a bird's-eye view
In the country governed by Rule of Law, it is said that there is no place for personal egos, whims and fancies, however, the case of Barabanki Mosque Demolition has proved that these concepts can only be seen in the books but in reality an SDM goes beyond its power and passes an order to demolish the 100 year old figure out of ‘personal malice’.
These days we have seen many instances where administrators opt for some unlawful means to grind their own axes, in such cases general public are the ones who suffer in between this hue and cry. Section 133 of the CrPC is one such instrument which is being used unlawfully and arbitrarily. It is true that “with power comes the abuse of power & when greater the power emerges, the more dangerous abuse would be” (Edmund Burke). The only way to put a halt on this misuse can be a proper check and balance on the functioning of the administrative authorities.
In this case of mosque demolition, the petitioners had plead that those kind of authorization of demolition by respondents appears to be not well thought, hasty and legally misinterpreted, severing through the concept of natural justice. This act goes against the principle of Rule of Law as the due procedure was not followed by authority while dealing with this case of mosque demolition, in which the question of ‘Title of property’ and ‘mosque’s registration validity’ was involved.
Such action of magistrate without any proper information regarding unlawfulness of such land, on which the mosque was located, are in grave violation of constitutional schemes and it raises important question touching upon the exercise of such power by state authority violating valuable rights including constitutional rights of the citizens. In such a case it is justified to file directly a writ petition instead of going for other remedies available under CrPC i.e. to file a revision application against order passed by SDM. In light of all these aforementioned legal contentions, it can be inferred that the case of mosque demolition requires the attention of judiciary in order to address the issue of abuse of power. Further, there is a need to look into the scope of Section 133 of CrPC in order to avoid any conflict in the future.
In case of L.J Bhatthi vs The State Of U.P And Others, a similar instance was seen where an order to remove nuisance was passed under Section 133, however, the magistrate failed to comply with the mandatory requirement of taking and recording evidence in terms of Section 254 of the code. Hence, under such circumstances the order was quashed and a new order was registered in the proceeding.
In Madras High Court’s 2008 judgement, it was observed that an action of SDM in taking cognizance of complaint, if it does not address any question of any imminent danger or obstruction of pathway as is being used for more than 12 years. Therefore, there is no obstruction of passage as such for public to use pathway. Hence, there was no occasion to use emergency power under Section 133 of Cr PC by SDM. Evidence placed before SDM did not disclose that there was any ‘imminent danger to public tranquillity’, therein the revision was allowed and Orders of Magistrate was quashed.
In the case of Brijkishore Rai v State of UP, it was observed that in case where a conditional order was passed under Section 133(1) by Magistrate, and in the case thereof petitioner filed his show cause and also filed evidence but the Magistrate, instead of recording any finding on the evidence adduced, based on his entire finding on local inspection, the order passed by the Magistrate was quashed.
Similarly, in the case of Barabanki mosque demolition, the SDM seemed to arbitrarily disregard all the information and evidence, and passed the order to demolish the mosque on ground of it being unlawfully constructed.
After covering all the major aspects concerning the Barabanki Mosque Demolition, it can be concluded that such order under Section 133 of CrPC undermines the Rule of Law. Furthermore, there is a need to define the ambit of power authorized to Magistrates, in order to ensure that no private interest is entertained in lieu of rights which is to be ensured under the section thereof. Otherwise, any authority can misuse such power by using this section, even in a situation where none of the essential elements of Section 133 are found, this instance is a grave unlawful act in itself. The magistrate’s order could not have delved into the issue of Title, however, the SDM of Ram Sanehi Ghat tried to pass the absolute order and did permanent injury to people who were attached to the mosque. Such action shows, how an unlawful order was passed even in the case where the officer had no jurisdiction to act. Hence, it would be entrancing to see the final judgment of this case which is pending before Allahabad High court, as it would be a landmark decision regarding Section 133 of CrPC.
Aruna Bopche ia a second-year student at National University of Study and Research in Law, Ranchi.
Image Source: The Quint
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