Bombay High Court
Alax Fernandes vs State And Anr. on 18 September, 1992
Equivalent citations: 1993(2)BOMCR55, (1993)95BOMLR404
JUDGMENT E.S. Da Silva, J.
1. The present application under section 482 of the Code of Criminal Procedure is directed against the judgment of the learned Sessions Judge, Panaji, dated 14th July, 1992 in Criminal Revision Application No. 6 of 1992 which has affirmed the judgment of the Executive Magistrate, Pernam, dated 17th January, 1992 in Case No. JM/MAG/1/89 whereby the criminal proceedings under section 133 Cr.P.C. the learned Magistrate has made absolute the conditional order dated 12-1-1991 and directed the petitioner to remove laterite stones within seven days from the date of the order from a pathway allegedly existing in his property and allow an access of 3.5 metres to the extent of the length of 19.70 metres.
2. The petitioner and others are the owners of a property situated at Tiracol village, Pernem Taluka, which is surveyed under Survey No. 60/30 of that village. On Alex D'Souza who is running a bar in a property adjoining the said property made a complaint to the Executive Magistrate, Pernam, on 27-4-1989 alleging that the petitioner blocked a pathway allegedly passing through the petitioner's property. On receipt of this complaint the Magistrate sent the same to the Police calling for a report on the subject-matter of the complaint. It appears that the Police after conducting some preliminary inquiry endorsed on the back of the same complaint a report to the effect that on the inspection of the site he had found that the petitioner has blocked the way with laterite stones keeping only a small way of about 1 foot to pass and that on inquiry he has learnt that by doing so he has obstructed the traditional way used for more than fifty persons. Not being satisfied with the said information supplied by the Police the learned Magistrate sent back the aforesaid complaint again to the Police with directions to the Police to investigate into the matter in the light of section 133 Cr.P.C. and thereafter submit a detailed report to him for further action. Pursuant to the said instructions the Police submitted to the Magistrate a report dated 6-6-1989 praying that on the facts of the case the learned Magistrate should take action against the petitioner under section 133 of Cr.P.C. in order to enable him to remove the obstruction and keep peace in the locality. On receipt of this report the learned Magistrate issued a conditional Order to the petitioner under section 133 Cr.P.C. on 26-6-1989.
3. The petitioner raised in his written reply a preliminary objection to the jurisdiction of the Magistrate to intervene in the matter as the alleged pathway was purportedly located in a private property. After this reply no action was taken by the Magistrate on the aforesaid notice but on 2-1-1990 a second notice was issued by the Executive Magistrate to the petitioner calling upon him to remove the nuisance for the inhabitants of the village to go to the public well through the said pathway in order to draw water from the said well. The petitioner did not reply to this second notice and inspite of that no action was again taken by the Magistrate. Finally on 17-1-1991 the Magistrate issued to the petitioner, a third notice which was replied by him on 1-2-1991. In this reply the petitioner again raised a preliminary objection regarding the lack of jurisdiction of the Magistrate to entertain such proceedings under section 133 Cr.P.C. for the reason that there was no public right to be enforced. In the aforesaid reply the petitioner besides denying the existence of any public pathway through his property pointed out that the complainant had filed a bogus or false case as he wanted the compound wall of his property to be kept open so that the customers of his bar would go directly from the main road to the said bar by taking their cars and motor-cycles.
4. The Magistrate inspite of these objections and denials on the part of the petitioner of the existence of any public right or way proceeded with a regular inquiry under section 138 Cr.P.C. without conducting first an inquiry under section 137 Cr.P.C. The Magistrate during this inquiry held a site inspection and recorded the evidence of the complainant, his brother and one of his employees after which by Order dated 17-1-1992 he confirmed his previous Order dated 17-1-1991 by directing the petitioner to remove the laterite stone wall from the alleged pathway by allowing to the complainant the aforesaid access of 3.5 metres in width and 19.70 metres in length.
5. Aggrieved by this Order the petitioner filed a criminal revision before the learned Sessions Judge who by his judgment and Order dated 15-2-1992 dismissed the revision and upheld the judgment of the learned Magistrate dated 14-7-1992.
6. Shri A. Couto, learned Counsel for the petitioner, has challenged the impugned Orders of the learned Magistrate as well as of the learned Sessions Judge on various counts. It was first submitted by the learned Counsel that the said Orders are bad, illegal and without jurisdiction inasmuch as the learned Magistrate has entertained the proceedings under section 133 Cr.P.C. without proper application of mind on the facts of the case and committed also gross error of jurisdiction by failing first of all to question the petitioner as to whether he was denying the existence of any public right in respect of a pathway through his property. He has also urged that inspite of his failure and the fact of the petitioner in his written reply having recorded such denial the learned Magistrate also again failed to conduct an inquiry on this denial in order to ascertain whether there was any substance on the denial made by him that there was no public right available for anybody in respect of the use of any way through his property. Shri Couto has strongly assailed the learned Magistrate's noncompliance with this mandatory direction to hold such inquiry before proceeding to inquire on the grievance of the complainant under section 138 Cr.P.C. It was contended by the learned Counsel that the law clearly envisages two separate inquiries in such circumstances when the petitioner on being questioned as to whether he denies the existence of any public right he records a denial. In the instant case the Magistrate straightaway proceeded under section 138 Cr.P.C. to inquire into the substance of the complaint by totally over looking the fact of the petitioner having raised a preliminary point of jurisdiction of the Magistrate to entertain the complaint on the existence of a public way through his property.
7. In order to appreciate the submissions of the learned Counsel for the petitioner we may beneficially go through the provisions of sections 133, 137 and 138 of the Criminal Procedure Code. Section 133 which is introduced in Chapter X and under the head of "Public Nuisances" provides for conditional order for removal of nuisance and enables a Magistrate on receiving the report of a Police Officer or other information and on taking such evidence (if any) as he thinks fit he considers that any unlawful obstruction or nuisance should be removed from any public place or from any way which is or may be lawfully used by the public for the purpose of making a conditional order requiring such person causing such obstruction or nuisance to remove such obstruction or nuisance or in case he objects to do so to appear before him to show cause as to why the conditional order should not be made absolute. In terms of section 137 which deals with procedure where existence of public right is denied when an order is made under section 133 the Magistrate shall, on the appearance before him of the person against whom the order is made, question him as to whether he denies the existence of any public right in respect of any way and if he does so the Magistrate shall, before proceeding under section 138, inquire into the matter. Section 138 Cr.P.C. in its turn which refers to procedure where he appears to show cause provides that if the person against whom an order under section 133 is made appears and shows cause against the order, the Magistrate shall take evidence in the matter, as in a summons case.
8. From the above scheme of the Act with regard to the removal of the nuisances it flows that when any complaint is made or report is received by the Magistrate and on investigation being satisfied about the existence of any unlawful obstruction which is to be removed from any public place or from a way which is or may be lawfully used by the public, a conditional order for the removal of such nuisance can be issued and with a direction that if such removal is not to be done by a person against whom an order is made he should appear before him to show cause as to why the Order should not be made absolute. Thereupon when such order is passed or issued against a person and the person appears before the Magistrate, the Magistrate is bound to question him as to whether he denies the existence of a public right in respect of any such public way. In case the person denies the existence of any public right, the Magistrate is then bound to inquire into the matter before proceeding under section 138. The language of the provision is very clear and does not give any scope for misunderstanding. In the instant case it is seen that after the conditional order was passed by the Magistrate on receiving a report from the Police who has investigated on the complaint addressed directly to him by the respondent No. 2 the petitioner has filed his written reply wherein he has raised the question of jurisdiction of the Magistrate to entertain the complaint on the ground that there was no public right or existence of a way which was being lawfully used by the public through his property. The learned Magistrate inspite of this written objection did not inquire into this denial of the existence of public way and straightaway proceeded to record evidence under section 138 which has culminated in the impugned Order making absolute the conditional order and directing the petitioner to remove the obstruction. It is in this context that the submissions of the learned Counsel for the petitioner who has rightly made a grievance that the Magistrate has failed to comply with his primary duty of questioning the petitioner about any denial on his part about the existence of the pathway is to be understood.
9. It is a fact that the question about the denial was not put by the Magistrate to the petitioner but in view of the circumstance that the petitioner has already recorded his denial about the existence of the public way the failure of the Magistrate cannot be said as vitiating the entire proceedings on this count alone. At the most such behaviour of the Magistrate is to be construed as a mere irregularity which is curable under section 537 of the Cr.P.C. However, the subsequent procedure followed by the Magistrate in failing to inquire into this denial on the part of the petitioner about the existence of the pathway assumes no doubt serious consequences. The learned Magistrate has no doubt by failing to hold an independent inquiry on this denial in order to ascertain about the genuineness and veracity of the denial committed a gross error of jurisdiction. It appears that the learned Magistrate found that in the inquiry under section 138 he could record his view on the substance of the denial and in this context he has held a composite inquiry both on the preliminary point as well as on the merits of the complaint made to him by the respondent No. 2. A bare reading of the Magistrate's impugned Order dated 17-1-1992 shows that it is an Order made by him under section 138 without a proper inquiry which the Executive Magistrate was bound to hold under section 137 for the purpose of giving a finding on the denial of the petitioner about the existence of the public way through his property. This fact by itself vitiates the entire proceedings and the impugned Order made by him under section 138. Shri Couto is therefore, right in urging that proceedings under section 133 could be taken only when there was an obstruction of public way and for that purpose a preliminary finding was required to be recorded by the Magistrate that there was a public way through the petitioner's property to enable him to inquire into the merits of the complaint regarding the actual obstruction put by him along this public way.
10. Several decisions have been relied upon by Shri Couto in respect of the grievances made against the impugned Order of the Magistrate, namely, the rulings given in the decision in the case of Brahmadeo Singh v. Indradeo Singh and others, 1984 Cri.L.J. 300, Vicant J. Cardozo v. State and another, 1973 Cri.L.J. 976, Madan Mohan Chowlia v. Ashutosh Sasmal and others, 1975 Cri.L.J. 959, Uma Kanta Chatterjee v. Kalipada Chowdhury and another , Raoram Laikham Singh and others v. The State and another, 1972 Cri.L.J. 118, Bejay Krishna Goswami and others v. Pravesh Ranjan Goswami and others, and C.V. Muthuvelas Valappan v. K.V. Narayanan Nair, . I need not go in detail through all these authorities because in my view the language of the relevant provisions of law is clear and in unmistakable terms sets on the correct procedure which the learned Magistrate was supposed to follow while dealing with this case. In all these rulings the letter and the spirit of the law has been reasserted and the same decisions although given on facts some of which are close to the ones in question have made it clear that the learned Magistrate was supposed to hold two separate and distinct inquiries and once the petitioner even without being questioned by the Magistrate had already recorded his objection about the existence of a public way through his property the preliminary inquiry about his denial was to precede the inquiry which the Magistrate had conducted on the merits of the complaint. The said decisions have also reaffirmed the contents of the aforesaid legal provisions that no composite inquiry was to be held by him and proceedings under section 138 should have been resorted to by the Magistrate only after on an inquiry under section 137 the Magistrate was satisfied that the denial made by the petitioner about the existence of a public right through his property was without substance.
11. The learned Counsel has also made strong grievance on the merits of the impugned Order of the Magistrate as well as of the learned Sessions Judge who according to him had exclusively relied on a site inspection carried on by the Magistrate without assessing the evidence led by the complainant in support of his claim that the petitioner has caused an obstruction on the traditional pathway which was being used by him and the residents of the adjoining property belonging to the landlord Danbar. The learned Counsel has also referred to the fact that the learned Sessions Judge has unduly placed reliance to support the Order of the Magistrate on the letter of the Assistant Survey and Settlement Officer without even giving an opportunity for the petitioner to cross-examine the said surveyor on the contents of the aforesaid letter. I have recorded these objections raised by the learned Counsel which in my view carry considerable substance but however I do not think that at this stage it is necessary for me to deal with the same more at length as a result of the findings arrived at by me on the points of law raised by the learned Counsel in respect of the failure of the learned Magistrate to comply with the relevant provision of section 137 of Cr.P.C.
12. Therefore, in the view I have taken on the matter the only conclusion which can be reached is that the impugned Order is vitiated for lack of jurisdiction on the part of the Magistrate and cannot be sustained as a consequence whereof there are two options open, either to set aside the impugned Order which is patently bad and without jurisdiction or quash the entire proceedings which appear also to be illegal in the facts and circumstances of the case.
13. Shri Bhobe, learned Public Prosecutor, for the respondent No. 1, has taken a fair stand on the matter and has placed before the Court the factual and legal position of the case by conceding that the impugned Order cannot be supported by him in view of a clear violation committed by the Magistrate of the mandatory command of section 137 with regard to the duty cast upon him to question the petitioner in respect of the denial on his part about the existence of a public way and also in respect of the need for him in case such denial has been made to inquire about the substance of the said denial. However, Shri Bhobe has contended that in the instant case once the petitioner has raised a preliminary objection in writing before the Magistrate by making such denial their was no need for the Magistrate to put a specific question in this respect about the denial of the public right. Reliance was placed by the learned Public Prosecutor on the decision in Anand Kishore v. State, 1974 Cri.L.J. 1321, wherein Their Lordships of Allahabad High Court held that where in a case under section 139-A of the Old Criminal Procedure Code, 1898 which corresponds to section 137 of the Criminal Procedure Code, 1973 the person concerned files a written statement challenging the existence of the public right, the oral questioning by the Magistrate may be a mere formality and failure to question such a person would be an irregularity curable under section 537 and will not vitiate the enquiry.
14. Shri Cardozo, learned Counsel for the respondent No. 2, has also been fair enough to concede that the obvious breach committed by the Magistrate of the mandatory provision of section 137 has vitiated the impugned Order and the very fact that a composite inquiry was held by the Magistrate suggests that the lack of a preliminary inquiry regarding the denial of the petitioner about the existence of a public right has rendered the Order null and void. However, the learned Counsel has urged that this error or jurisdiction committed by the Magistrate could not justify the quashing of the entire proceedings in this case beyond the quashing of the impugned Order. The learned Counsel therefore prayed that by setting aside the Order of the Magistrate the matter should be remanded again to him for the purpose of holding an inquiry under section 137 Cr.P.C. Reliance was placed by the learned Counsel on the case of Pavithran Madukkani and others v. Konjukochu and another, 1982 Cri.L.J. 103, as well as on the judgments cited by the learned Counsel for the petitioner and reported in 1964(1) Criminal Law Journal 248, 1975(1) Criminal Law Journal 959 and 1974 Criminal Law Journal 1321. In the aforesaid case of Pavithram Madukkani and others v. Kanjukochu and another, 1982 Cri.L.J. 103, Khalid, J., of the Kerala High Court (as he then was ) while dealing with sections 133, 137(1) and 138 of the Cr.P.C. has made it clear that a Magistrate can make a preliminary order absolute only when the party against whom a preliminary order is passed fails to appear before him on the first occasion after receipt of the preliminary order. When the party appears and denies the public right, the Magistrate has to enquire into the denial put forward and pass appropriate orders on such enquiry in accordance with section 137(2). If the party against whom the preliminary order is passed fails to appear to lead evidence in support of his denial, the Magistrate has to enter into the second stage contemplated in section 138 and enquire about the existence of the public right alleged by taking evidence in the matter as in summons case. Consequently where the party had appeared and denied the public right, order made absolute without holding enquiry would be liable to be set aside.
15. In the aforesaid case the Court found that this was a fit case to exercise jurisdiction under section 482 Cr.P.C. to give effect to an order under the Code for the purpose of securing the ends of justice. Accordingly the orders of the Magistrate as well as of the Sessions Judge who had also upheld the order of the Magistrate were quashed and the matter was remitted back to the Magistrate with a direction to take the case on his file and proceed with the inquiry in terms of the legal provisions to be applied.
16. Shri Couto has vehemently argued that in the facts and circumstances of this case when there is internal evidence on record consequent upon the deposition of the complainant, his brother and his own employee with regard to the existence of a loose stone wall all along the boundary of the petitioner's property adjoining to the public road there was no need to remand the case to the Magistrate in order to enquire about the existence of a public right or way through his private property. The learned Counsel urged that this fact by itself strongly points out that the objection raised by the petitioner in his written reply has been substantiated by the very evidence led by the complainant. It was also contended by the learned Counsel that by remanding the matter to the Magistrate this would give to the complainant unfair advantage as it would alert him to fabricate evidence in support of his claim about the existence of a public way.
17. I have given an anxious thought on the rival submissions of the learned Counsels of the petitioner and of the respondent No. 2 and I am satisfied that on this point the apprehensions of the petitioner's learned Counsel do not appear to be fully justified. The evidence of the complainant and his witnesses has been already recorded by the Magistrate and in the enquiry to be held by him under section 137 about the denial of the public road or way through the petitioner's property the learned Magistrate cannot certainly overlook the weight or the impact of this evidence on any further evidence which the learned Magistrate may find it proper to record for the purpose of giving a finding on this preliminary objection raised by the petitioner. On the other hand it is my considered view that although the Magistrate has committed a clear breach of the relevant provisions of law by not holding inquiry on this preliminary objection raised by the petitioner this fact by itself should not pre-empt the Magistrate from giving a definite finding on this preliminary objection on the basis of whatever evidence is available on record or on the basis of any other evidence or inquiry which he chooses to hold for this specific purpose. My only hope is that the learned Magistrate whilst conducting such inquiry and before arriving at a definite finding would properly apply his mind to the matter and take whatever decision he thinks fit on the basis of the material and relevant evidence placed before him. By doing so the learned Magistrate would only do his duty and see to it that the petitioner should not be disadvantageously placed in this case by allowing to the complainant an unfair advantage on the question of deciding as to whether there exists or not a public way through the petitioner's private property.
17A. In the result this application is bound to succeed and is accordingly allowed. The judgment and Order of the learned Magistrate dated 17-1-1992 in the Case No. JM/MAG/1/89 as well as the judgment and Order of the learned Sessions Judge dated 14-7-1992 in Criminal Revision Application No. 6 of 1992 are hereby quashed and set aside. The case is remanded to the Magistrate to deal with the matter as per the law and the observations made by me in this judgment. He should take the proceedings from the stage of the conditional order bearing in mind the denial made by the petitioner in his reply so as to hold an independent inquiry on this point and act thereafter in strict terms of the provisions of sections 137 and 138 of the Code of Criminal Procedure.
Rule made absolute in the above terms.