Patna High Court
Rukmini Raman Singh And Anr. vs Herdeo Mandal on 11 December, 1968
Equivalent citations: AIR1970PAT207, 1970CRILJ833, AIR 1970 PATNA 207
ORDER Kanhaiyaji, J.
1. This case is typical of the cases which generally come up to this court under Chapter X of the Criminal Procedure Code (hereinafter referred to as the Code) owing to the neglect of the Magistracy to observe the procedure prescribed by Section 139A of the Code. The section requires that when a person on whom conditional notice under Section 133 of the Code has been served appears in response to that notice and denies the existence of any public right in a way, river, channel or place alleged to have been obstructed, the Magistrate shall enquire into the matter and if in course of such enquiry, the Magistrate finds that there is any reliable evidence in support of the denial, he is bound to stay the proceeding until the existence of the right has been decided by a competent civil court. If, on the other hand, he finds that there is no such reliable evidence he is required to proceed in the manner prescribed by Section 137 or Section 138 of the Code.
2. In the present case, the opposite party filed an application before the Subdivisional Magistrate, complaining obstruction by cutting the Rashta appearing between survey plots Nos. 5313 and 5321 in the north and 5312 and 5323 in the south, at village Riga, police station Sitamarhi, and amalgamating it into the adjoining lands, which caused much inconvenience to the people in general in going to the main road of the village. The application was filed by the learned Magistrate for non-prosecution on the 9th April, 1963. However, it was restored and the petitioners appeared and complained that the application filed by the opposite party was vague and inaccurate with respect to the plots alleged to have been obstructed.
The Subdivisional Magistrate, by his order dated the 14th August, 1963, directed the office to draw up a proceeding under Section 133 of the Code against petitioner No. 1, and it was transferred to the court of Shree V.N. Shukla for favour of disposal. The petitioners filed their show cause petition on the 10th October, 1963. The learned Magistrate perused the show cause petition filed by the petitioners and held on the 13th January, 1964, that the survey plot number was not fixed and hence the court could not proceed. Consequently, the opposite party was given an opportunity to furnish the correct plot number failing which it was ordered that the proceeding would be dropped. The opposite party supplied specification of the disputed Rashta, on the basis of which the proceeding was amended and show cause notice was ordered to be issued to the petitioners. The petitioners filed show cause on the 10th July, 1964, denying the existence of any public right on the alleged ridge. The petitioners claimed that the public was not interested in the said ridge. The learned Magistrate heard the parties on the 3rd August 1964. Thereafter the opposite party filed a petition dated 17th August, 1964. The learned Magistrate also heard the lawyers for the parties on the petition filed by the first party. Ultimately on the 15th March, 1965, the learned Magistrate passed the following order:
"1st party files Hazari, Perused the petitions filed by the O. Ps. on 14-5-64 and 10-7-64 to drop the proceedings for the grounds given in the petitions. Also perused the petition filed by the 1st party filed on 17-8-64. Heard the learned lawyers of both the parties. I do not find any force in the petitions filed by the O. Ps. The proceeding can be started as given in law either 'on receiving a police report or other informations and hence it is a fit case which can proceed Under Section 133 Cr. P. C. and hence I disagree with show cause petitions filed by the O. Ps.
Since the proceeding has already been amended and specification is given in the amended proceeding of the 'public Rasta', and the O. Ps. were directed to remove the said obstruction within 15 days from the service of the notice but no compliance has been reported to the court and hence the case will proceed according to law. As the O. Ps. have challenged the public Rasta and so the 1st party has to prove if there is a public Rasta by adducing evidence. Put up on 12-4-65 for evidence."
The parties filed documents and examined witnesses in support of their respective cases before the Magistrate, who, ultimately, by his order dated the 8th April, 1968, held that the ridge (Rasta) was a public Rasta in a public place and ordered the petitioners to remove the obstruction and vacate the encroachment from plot number 13450.
3. It is apparent from the above that in the present case, the petitioners (second party) appeared to show cause against the conditional order, but the Magistrate made no enquiry from them as to whether they denied the existence of the public right or not, nor did the Magistrate make any enquiry as to whether there was any evidence in support of such denial. It is apparent, however, that the Magistrate has taken evidence with regard to the existence of the public right and that on consideration of that evidence, he has been able to decide that the right does exist. It is manifest that the Magistrate did not direct his mind at all to ascertaining whether there is any evidence in support of the denial of the existence of the public right and took upon himself to decide the question whether a public right existed or not. In this way, he usurped the functions of a civil court and deprived the party concerned of the right to have the matter decided by that Court at a preliminary stage.
4. It is contended on behalf of the first party (Opposite party) that the order should not be set aside merely because the Magistrate did not comply with the provisions of Section 139A of the Code. That however, is to overlook the whole object of the provisions of that section. It has been held in Munilal Agarwala v. Public of Bhagalpur, AIR 1941 Pat 38, by Agarwala J. (as he then was) that those provisions are clearly designed to show that where there is a reliable evidence in support of the denial of the existence of the public right, the Magistrate shall have no jurisdiction to pronounce on the cogency of that evidence, but to refer the matter to the civil court. This view is also supported by a Bench decision of this court in the case of Darsan Ram v. State, AIR 1959 Pat 81. It has been held in that case that in a case falling under Section 139A, it is imperative for the Magistrate, first, to hold an enquiry as laid down therein before he proceeds under Section 137 or Section 138 of the Code, as the case may be. The Magistrate gets jurisdiction to continue the proceeding after an enquiry held in accordance with Section 139A. The enquiry envisaged in Section 139A is in the nature of an ex parte summary enquiry and what the Magistrate is to see is whether there is a prima facie reliable evidence in support of the denial and not that the non-existence of the public right should be affirmatively proved.
5. For the reasons given above, the orders passed by the learned Magistrate after the 26th February, 1965, are set aside and he is directed to rehear the proceeding from the stage where the second party should have been asked under Section 139A of the Code, whether he denied the existence of the public right. It is needless to say that in the rehearing of this case, the learned Magistrate should not overlook the actual terms of the conditional order issued under Section 133 of the Code. The application is allowed.