Rajasthan High Court - Jaipur
G.B. Jain And Sons vs State Of Raj. And Anr. on 30 April, 1999
Equivalent citations: 1999(3)WLC694, 1999(1)WLN368
JUDGMENT G.L. Gupta, J.
1. This misc petition is directed against the order dt. 22.6.1998 passed by the learned Additional Sessions Judge No. 2, Udaipur, whereby he dismissed the criminal revision of the petitioners and upheld the order dt. 15.6.1998 of the learned Addl. District Magistrate (City), Udaipur, in proceedings under Chapter X of the Code of Criminal Procedure, 1974.
2. The brief facts of the case are these.
The petitioners after obtaining a licence on 4.5.1992 for a period of 30 years from the Municipal Council, Udiapur, installed amusement rides at Sukharia Circle, Udaipur. The amusement rides included Bumper Boat. Paddle Boat etc. On 7.9.1995, the A.D.M. (City) Udaipur recorded an order Under Section 133 Cr.P.C. that the amusement rides attracted the public of Udaipur, particularly children in large number at Sukharia Circle, situate on National Highway, which was causing obstruction in the public way and there was risk of accidents. He passed conditional order Under Section 133 Cr.P.C. for removal of nuisance. Notices were served on the petitioners on 18.9.1995, which required that they removed the nuisance from the public place within one week or to show cause on 20.9.1995.
The petitioners, instead of, appearing before the ADM, approached this Court by filing writ petition No. 3184/95, in which, it was directed on 19.9.1995 that the operation of notice Annexure 6 shall remain suspended and status quo regarding possession be maintained. The petitioners appeared on 20.9.1995 before the Additional District Magistrate and filed a copy of the order of this Court dt. 19.9.1995.
The writ petition was disposed of by this Court on 10.11.1995. The petitioners, thereafter, on 20.11.1995, filed reply to the notice dt. 8.9.1995 raising various objections; viz. the notice was issued without any material on record, the running of the business of amusement rides by the petitioners under the licence did not amount to public nuisance, and that the place where amusement rides were installed-------------was not public place or public way. Thereupon, the evidence of both Jhe parties was recorded. Vide order dt. 15.6.1998 the learned A.D.M. made the ordejsdt. 7.9.1995 absolute and directed that the amusement rides be removed by 22.6.1998, failing which, the police would remove the amusement rideis at the cost of the petitioners.
The petitioners challenged that order before the Sessions Judge, Udaipur by preferring revision petition. The revision petition was heard by the Additional Sessions Judge No. 2 Udaipur, who vide order dt. 22.6.1998 upholding the order of the A.D.M. Dismissed the same. It is against that order, the petitioners have filed the instant misc. petition.
3. Mr. Gupta, learned Counsel for the petitioners, assailed the order of the ADM on the following grounds:
(i) No preliminary order and the conditional order Under Section 133 Cr.P.C. were passed by the Magistrate before issuing notice to the petitioners and as such the entire proceedings stand vitiated.
(ii) After the petitioners appeared before the Magistrate in response to the notice Under Section 133 Cr.P. C, they were not questioned Under Section 137(1) Cr.P.C. as to whether they denied the existence of public right in respect of the way or place, and this being mandatory provision the proceedings and the order based on such proceedings stand vitiated.
(iii) The learned Magistrate did not afford an opportunity to the petitioners to lead evidence to show that the public right, in respect of the way or place, did not exist, and he did not stay the proceedings, therefore, the provisions of Sub-section (1) and (2) of Section 137 Cr.P.C. were violated and the final order passed by the Magistrate is without jurisdiction, and wholly illegal. Mr. Gupta cited various rulings on the point, which shall be discussed at the appropriate place.
(iv) The amusement rides were not installed at the public place or public way, and therefore, the proceedings under Chapter X, Cr.P.C. could not be initiated. His contention was that the inconvenience caused to the people outside the area of the amusement rides would not give rise to an action Under Section 133 Cr.P.C. He relied on the case of Ram Autar v. State of U.P. 1962 SC-1794.
(v) The petitioners had been granted licence to instal the amusement rides for 30 years for which the petitioners invested lacs of rupees and the initiation of the proceedings under Chapter X, Cr.P.C. was malafide act of the respondents.
4. Mr. Jangid, learned Additional Advocate General, opposing the petition raised a preliminary objection. He contended that the petitioners having availed of an opportunity of preferring revision before the Sessions Judge against the order passed by the learned A.D.M., cannot invoke the jurisdiction of this Court Under Section 482. Cr.P.C. His submission was that this misc. petition is nothing but second revision petition, in the garb of misc. petition, which is barred by Section 397(3) Cr.P.C. He placed reliance on the cases of Jesa Ram & 34 Ors. v. State of Raj. 1996(3) WLC (Raj.)-541, Hukmichand v. State of Raj. 1996(3) WLC (Raj.)-245, Dharmapal v. Ramshri and Mohanlal v. State of Raj. 1994(2) RLW-120. His further submission was that the petitioners did not raise the contentions with regard to the violation the provisions of Section 133 Cr.P.C. or 137 Cr.P.C. before the Magistrate, as also before the Sessions Judge, and therefore, they are not entitled to raise new points in this misc. petition. Mr. Jangid canvassed that the provisions of questioning and inquiring under Sub-section (1) and staying of the proceedings under Sub-section (2) of Section 137 Cr.P.C. are directory in nature and non-compliance of these provisions is mere irregularity, curable under Chapter XXXV of the Code of Criminal Procedure. He submitted that the impugned orders should not be quashed on the new points raised by Mr. Gupta. He relied on the cases of Budh Sing v. Hapu Ram 1996 (2) WLC (Raj.)-133 and Sukh Ram Kalu Ram v. Manohar Lal Ramsaran Dass 1960 Punjab-377 and Gulab Singh v. State 1960 Allahabad-436 in support of his contention that the provisions of Section 137 Cr.P.C. are directory in nature.
5. Mr. Maheshwari, learned Counsel for respondent No. 2 Municipal Council, adopting the contentions of the State, tried to support the impugned orders.
6. In rejoinder, Mr. Gupta, learned Counsel for the petitioners, emphasizing that the non-compliance of the mandatory provisions of Section 133 Cr.P.C. and 137 Cr.P.C. renders the order wholly illegal and without jurisdiction, submitted that the petition should not be thrown away on the ground that petitioners had filed criminal revision before the Sessions Judge against the order of the ADM. He stressed that it is the duty of the High Court to invoke powers under Section 482 Cr.P.C. if it comes to its notice that there has been illegality in the proceedings, which has resulted in failure of justice. He placed reliance on the case of Krishnan v. Krishnaveni 1997 SC-987 to show that the power of the High Court Under Section 482 Cr.P.C. is not controlled by Section 397(3) Cr.P.C.
7. I have considered the rival contentions of the learned Counsel for the parties and perused the record of the case.
8. The first question to be considered is whether this criminal misc. petition should be dismissed on the sole ground that the petitioners had already filed revision petition before the Sessions Judge against the order of learned Magistrate.
9. The Apex Court in the case of Krishnan v. Krishnaveni (supra) had occasion to consider the effect of availing of remedy Under Section 397 Cr.P.C. "by a party, on the inherent powers of the High Court Under Section 482 Cr.P.C. The relevant observations are at para No. 8 of the report which are reproduced hereunder:
8. The object of Section 483 and the purpose behind conferring the revisional power under Section 397 read with Section 401, upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to meet out justice. In addition, the inherent power of the High Court is preserved by Section 482. The power of the High Court, therefore, is very wide. However High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under Section 397(1). However, when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is. but the salutary duty of the High Court to prevent the abuse of the process of miscarriage of justice or to correct irregularities/incorrectness committed by inferior Criminal Court in its juridical process or illegality of sentence or order.
(emphasis supplied) Their lordships considered the various earlier decisions on the point and ultimately held at para no: 14 of the report that despite the prohibition under Sub-section (3) of Section 397 Cr.P.C., inherent power of the High Court is available Under Section 482 Cr.P.C. and the High Court is justified in interfering with the order leading to miscarriage of Justice.
10. In view of the authoritative pronouncement of the Apex Court, the petition cannot be thrown away on the specious ground that the petitioners had already availed of the remedy of preferring revision before the Sessions Judge. It is to be seen if the case comes within the criterion Lald down by the Apex Court in the case of Krishan v. Krishnaveni (supra) for invoking powers Under Section 482 Cr.P.C. If there is merit in the contention of the petitioners, that because of the non-compliance of certain provisions, the order of the Magistrate is vitiated, it will certainly be appropriate case in which this Court should exercise inherent powers Under Section 482 Cr.P.C.
11. As to the first contention of Mr. Gupta, it is to be seen whether no preliminary order and the conditional orders were passed by the Magistrate under Section 133 Cr.P.C. before he issued notices to the petitioners.
12. The contention or Mr. Gupta was that notice Under Section 133 Cr.P.C. can be issued only after preliminary order and conditional orders are passed. Pointing out that the notice delivered to the petitioners was issued on 7.9.1995 and the preliminary order bears date 8.9.1995, he canvassed that the notice was issued before drawing the preliminary order and the conditional order.
13. Mr. Jangid's contention, in this regard, was that it is a pure question of fact which was not raised before the Magistrate or before the Additional Sessions Judge, and therefore, the petitioners should not be allowed to raise this point. His submission was that had this objection been taken in the first court, the respondents could have explained the discrepancy of the dates. He submitted that in the order, the date '8' seems to have been typed by mistake in place of '7'.
14. The relevant portions of Section 133 read as follows:
133. Conditional order for removal of nuisance.-(1) Whenever a District Magistrate or a Sub-divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government, on receiving the report of a police officer or other information and on taking such evidence (if any) as he thinks fit,
(a) that any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel which is or may be lawfully used by the public; or xxx such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation, or keeping any such goods or merchandise, or owning, possessing or controlling such building, tent, structure, substance, tank, well or excavation, or owning or possessing such animal or tree, within a time to be fixed in the (1) to remove such obstruction or nuisance; or xxxx or, if he objects so to do, to appear before himself or some other Executive Magistrate subordinate to him at a time and place to be fixed by the order, and show cause, in the manner hereinafter provided, why the order should not be made absolute.
(2) No order duly made by a Magistrate under this section shall be called in question in any Civil Court.
Explanation._A "public place" includes also property belonging to the State, camping grounds and grounds left unoccupied or recreative purposes.
15. A reading of the section indicates that a conditional order can be made only after the Magistrate considers that the unlawful obstruction or nuisance should be removed from any public place or from any way, which means that no conditional order can be issued unless the Magistrate considers it necessary that unlawful obstruction and nuisance should be removed. Thus passing of the preliminary order is certainly a condition precedent for making a conditional order. The Magistrate may or may not make conditional order requiring a person causing such obstruction or nuisance to remove such obstruction or nuisance. In case, he proceeds to make conditional order he shall ask the person concerned to show cause on the date to be fixed, why the order should not be made absolute.
16. The petitioners neither took such objection in the proceedings before the Magistrate nor the point was raised before the learned Additional Sessions Judge. Even in the petition Under Section 482 Cr.P.C. this point has not been raised in clear words. Certainly, it is a question of fact, that whether a preliminary order was passed on 7.9.1995 or 8.9.1995 which cannot be allowed to be raised for the first time in this Court.
17. A reading of the order passed on the file of the learned A.D.M. shows that date 8.9.1995 is recorded at the concluding para of the order, but in the beginning of the order, the month and year are typed but the date '7' is written by ink. The contention of Mr. Jangid that the typist by mistake might have recorded date 8.9.1995 and the learned A.D.M., when noticed the mistake, made a correction in the date in the beginning but forgot to correct the error in the end, cannot be lightly brushed aside. Be that as it may, the respondents had no occasion to explain the discrepancy in the date as no such objection was ever taken by the petitioners before the Magistrate. Simply because the date 8.9.1995 is recorded at the end of the preliminary order, it cannot be said with certainty that the preliminary order was not made on 7.9.1995 more so when date '7' is written by ink in the beginning of the order. That being so, there is no merit in the first contention or Mr. Gupta.
18. To appreciate the second and third contentions raised on behalf of the petitioners, Section 137 Cr.P.C, 1974 which is more or less identical to Section 139-A of the Old Code of Criminal Procedure, 1898 is read hereunder:
137. Procedure where existence of public right is denied-(1) Where an order is made under Section 133 for the purpose of preventing obstruction, nuisance or danger to the public in the use of any way, river, channel or place, the Magistrate shall, on the appearance before him of the person against whom the order was made, question him as to whether he denies the existence of any public right in respect of the way, river, channel or place, and if he does so, the Magistrate shall, before proceeding under Section 138, inquire into the matter.
(2) If in such inquiry the Magistrate finds that there is any reliable evidence in support of such denial, he shall stay the proceedings until the matter of the existence of such right has been decided by a competent Court; and, if he finds that there is no such evidence, he shall proceed as laid down in Section 138.
(3) A person who has, on being questioned by the Magistrate under Sub-section (1), failed to deny the existence of a public right of the nature therein referred to, or who, having made such denial, has failed to adduce reliable evidence in support thereof, shall not in the subsequent proceedings be permitted to make any such denial.
19. Sub-section (1) of Section 137 requires that if the person against whom an order was made under Section 133 Cr.P.C. denies the existence of any public right in respect of the way or place, the Magistrate shall before proceeding under Section 138 inquire into the matter. Sub-section (2) says that if in such inquiry, the Magistrate finds that there is reliable evidence in support of the denial, he shall stay the proceedings, until the matter of existence of such right is decided by a competent Court, and if he finds that there is no reliable evidence in support of the denial, he shall proceed to decide the matter under Section 138 Cr.P.C.
20. It was not disputed during arguments that the petitioners on their appearance were not questioned by the Magistrate Under Section 137(1) Cr.P.C. that whether they denied the existence of public right. It was also not disputed that the Magistrate did not hold inquiry as to the denial of existence of public right. I have gone through the proceedings myself. It is obvious that after the petitioners filed reply, the matter was straightway posted for evidence of the prosecution and neither the petitioners were questioned nor any inquiry as to the denial of existence of public right was held.
21. The point to be considered is, whether because of non questioning the petitioners under Section 137(1) Cr.P.C. the impugned order passed by the Magistrate stands vitiated.
22. The provision of Sub-section (1) of Section 137 Cr.P.C, regarding questioning to the petitioners, it has to be accepted, is not of mandatory nature. The petitioners in their reply had denied the existence of public right and therefore the denial was already on record. The non-questioning by the Magistrate to the petitioners about the existence of the public right, therefore, cannot be said to be fatal. This Court in the case of Budh Singh v. Hapu Ram (supra) has held that when the notice himself denies the existence of public way in the reply, failure to ask question Under Section 137(1) Cr.P.C. by the Magistrate is mere irregularity which is curable Under Section 465 Cr.P.C. Even in the case of Anand Kishore v. State 1974 Cri.L.J. 1321, relied on by the learned Counsel for the petitioners, it has been held that where a person files written statement challenging the existence of public right, the oral questioning by the Magistrate is a mere formality and failure to question, such a person would be an irregularity curable Under Section 437 (old Code) and will not vitiate the inquiry. So also, in the case of Sukh Ram v. Manohar Lal (supra), the Punjab High Court has taken the view that the non-compliance of provisions of Section 139-A(1) (old Code) was not fatal as in the written statement the person had denied the existence of public right. I am in full agreement with the view taken in the aforesaid cases. The impugned order cannot be said to have vitiated on the ground that the petitioners were not questioned regarding the existence of public right.
23. Now the question to be considered is whether because of not holding inquiry as to the existence of public right, the impugned order passed by the ADM gets vitiated.
24. A bare reading of Section 137 Cr.P.C. makes it clear that the Magistrate can proceed to decide the manner himself only if he records a finding that there is no reliable evidence in support of the denial made by the person who had appeared in response to the notice. The provision of-holding inquiry under Sub-section (1) cannot be said to be a formality. As a matter of fact, the Magistrate gets jurisdiction to decide the matter finally only when he records afinding that there is no reliable evidence in support of denial as to the existence of the public right.
25. In the case of Julu Mia v. Golam Hussain (1960 Tripura-3), which was under Section 139-A of the Old Code, it was held as follows:
The provisions under Section 139-A is mandatory and a Magistrate before whom proceedings under Section 133 Cr.P.C. have been started in respect of the obstruction of an alleged public pathway has no jurisdiction to ignore the said provision and proceed under Section 137(1) without holding the enquiry contemplated under Section 139-A(1). If he does so his order has to be declared as a nullity, for it is not a mere irregularity which does not affect the jurisdiction of the Magistrate but an exercise of a jurisdiction which was not vested in him.
So also in the case of Prabhu v. Satya Narain 1954 Allahabad-38 it was held that Section 139-A Cr.P.C. (Old Code) enjoins that there should be an inquiry if a person, to whom notice issued, comes forward and denies the existence of a right of public way on the land in respect of which obstruction is alleged.
The same view was taken in the case of S.P. Trivedi v. State 1954 Allhabad-203 wherein it was held that it is only after the Magistrate comes to the conclusion as a result of the inquiry that there is no reliable evidence as to the denial of existence of public right that he is entitled to proceed and pass final order, and if finding was not recorded to that effect the proceedings vitiated.
So also in the case of Bardeshwari Prasad v. Rabi Nandan Saho 1956 Calcutta-24 a Division of the Calcutta High Court held that the provisions of Section 139-A must be expressly complied with.
This was also the view taken by a Division Bench of the Patna High Court in the case of Darsan Ram v. State 1959 Patna- 81. In that case, it was also held that in the enquiry envisaged under Section 139-A, the Magistrate should not take evidence of both the parties and then to judge if the party against whom the order has been made has succeeded in establishing the non- existence of the public right. In other words, the inquiry contemplated Under Section 137(1) of the new Code envisages only the evidence to be led by the noticee.
The Kerala High Court in the case of T.P. Rqjeevan v. Sub-Divisional Magistrate 1986 Cri.L.J. 693 held that the scope of the inquiry Under Section 137 is preliminary in nature and the party who has denied the public right will have to be called upon to produce evidence in support of the denial. It was further held that at that stage, the party at whose instance law was set at motion, cannot claim that he should also be allowed to adduce evidence.
The Punjab & Haryana High Court in the case of Jaswant Singh v. Jagir Singh 1972 Punjab & Haryana had held that the inquiry contemplated under Section 139-A (Old Code) is mandatory in nature and order without complying with Section 139-A is unwarranted and vitiates the proceeding. In the case of Ramakrishnan v. K. Musalikutty 1985 Cri.L.J. 630, Hon'ble M. Fathima Beevi, J., as she then was, who later adorned the Bench of the Apex Court, held that where no inquiry into the matter of existence of public right is made and no finding regarding such existence is arrived at, the further proceedings under Section 138 would be without jurisdiction.
Even this Court way back in 1954 in the case of Thakur Kalyan Singh v. The State 1954 RLW 704 held that the provisions of Section 139-A (Old Code) are mandatory and the Magistrate is not authorised to jump to the proceedings under Section 137 of the Criminal Procedure Code (old Code) without taking any proceedings under Section 139-A. This was also the view taken in the case of Jai Kishan v. State 1954 RLW 174. The view was reiterated in the case of Ganga Ram v. State of Rajasthan 1969 Cri.L.J. 1461. It was clearly held that where the Magistrate after the denial of the notices as to the public right, did not record finding under Section 139-A (old Code), but examined the witnesses and decided the case, the order of the Magistrate is without jurisdiction. In that case, it was emphasised that the object of Section 139-A (old Code) is to prevent the Magistrate arrogating to himself functions of civil Court and institute detailed inquiry into civil rights of the parties. Holding that the provisions of Section 139-A are imperative, it was observed that if there is evidence in support of denial, the Magistrate must stay the proceedings.
26. The legal position which emerges out from the cases referred to above is that it is mandatory for the magistrate to hold inquiry contemplated Under Section 137(1) Cr.P.C. and if no such inquiry is held, and the Magistrate straightway proceeds to decide the matter Under Section 138 Cr.P.C, the proceedings are vitiated and the order passed on such proceedings is not sustainable in law.
27. The case of Budh Singh v. Hapu Ram (supra) relied on by Mr. Jangid is clearly distinguishable. In thats case, the person, whom the notice was issued, was permitted to lead evidence in support of the denial of the existence of the public way and the learned Magistrate after weighing the evidence came to the conclusion that there was existence of the public way. That was not the case, where no inquiry envisaged under Section 137(1) Cr.P.C. was held. So also, in the case of Sukh Ram v. Manohar (supra) inquiry envisaged held that the evidence led by the noticee was not sufficient to reach to the conclusion that there was no existence of public right. It is obvious, there was no violationd of mandatory provisions of Sections 139-A, Cr.P.C. (old).
28. Having gone through the entire case law on the point I have no hesitation in holding that the learned Additional District Magistrate, in the instant case, committed grave error in not asking the petitioners to lead evidence as to the non- existence of public right. He has thus clearly violated the mandatory provisions of Section 137(1) & (2) Cr.P.C. The Magistrate could have jurisdiction to decide the matter, only after he came to the conclusion that there was no reliable evidence in support of the denial of the existence of public right. Since he did not address himself to the vital question as to the existence or non-existence of the public right, and straightway proceeded to record evidence Under Section 138., Cr.P.C, the order passed by him is vitiated and is not sustainable. It has to be held that there has been failure of justice and misuse of judicial procedure. The learned Addl. Sessions Judge has committed obvious error in upholding the order of the Magistrate. It has become necessary to remit the case to the A.D.M.
29. As the matter is being remitted to the A.D.M. for holding inquiry, envisaged under Sub-section (1) of Section 137 Cr.P.C, and deciding the matter afresh, it is not proper to express opinion on the fourth and fifth contentions of Mr. Gupta.
30. Consequently, this petition partly succeeds. The impugned orders are set aside. The case is remitted back to the A.D.M. (City), Udaipur for disposal in the light of the observations made above.