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Allahabad High Court · body

1957 DIGILAW 121 (ALL)

Lala Bissomal v. State

1957-03-13

ROY

body1957
JUDGMENT Roy, J. - This is an application in revision against an order of a learned Magistrate passed under the provisions of Section 133 of the Code of Criminal Procedure which has been confirmed in revision by the learned Addl. Session Judge of Agra by his order dated 11.7.1956 2. The applicant Lala Bissomal obtained certain land from the Chairman the Town Area Committee of Achhnera who also happened to be at one time the Zamindar of the place The applicant started certain constructions sometime prior to the year 1950. The Town Area committee of Achhnera instituted proceedings against Bissomal for demolition of the constructions on the ground that they were encroachment on public land or public way. During the course of that matter an application for temporary injunction was made (sic) Bissomal from proceeding with the further constr.uction. By an order dated 11-1-1949 the application for temporary injunction was rejected by the Magistrate, but the Magistrate by the same order further observed. It would in, addition be a negations of the entire proceedings if opposite party are allowed, complete the construction, and therefore is desirable that they should not go on this unauthorised construction until and unless the present case is disposed of. 3. The Town-Area Committee subsequently complained to the same Magistrate that Bissomal had not respected the order' aforesaid and that he was proceeding with the construction. The Town Area Committee ultimately succeeded in having a complaints filed against Bissomal u/s 183 of the IPC. Against the sanction for the complaint which was passed by the Magistrate under the provisions of Section 476 of the Code of Criminal Procedure an appeal was filed before the Sessions judge u/s 476(B) of the Code and was allowed by him on 11-8-1950. The Sessions judge was of the view that the proceedings that were pending before the Magistrate were not u/s 133 of the Code of Criminal Procedure and consequently the Magistrate had no jurisdiction to pass an order for the stay of the construction and there was, therefore, no disobedience of any lawful order passed by the court which could be made the subject of a complaint u/s 188, IPC. 4. 4. It appears that about four year later, that is, in the middle of July, 1954, the present proceedings were started by the Town Area Committee, Achhnera u/s 133 of the Code of Criminal Procedure in regard to the same construction. The Town Area Committee contended that the construction' complained of was over public land and the it interfered with a right of way which vested is the public. The Magistrate issued a provisional order u/s 133 of the Code of Criminal Procedure. Bissomal then appeared and denied that the place was a public place at all. He said that the land was his own and that he had bought it, from the Zamindar. The Magistrate purported then to hold an enquiry u/s 139A of the Code of Criminal Procedure. Bissomal produced some evidence in support of his contention. The Magistrate then passed an order on 4-3. 1955, by when he held., "The opposite, party has failed to satisfy that there is no right of public to use this land as Rasta or otherwise." 5. After having given that finding the learned Magistrate purported to proceed u/s 137 and 138 of the Code of Criminal Procedure and directed the parties to Adduce further evidence in the case. Further evidence was taken and by an order dated 4-8-1955, he made the order u/s 133 final and he thereby directed Bissomal to remove the obstruction. The Magistrate had rather a confused notion of what he was called upon to decide; and the decision by him suffers under the same confusion of thought. At one place in his judgment dated 4-8-1955, he mentioned that it was clear to him that the title claimed to the land alleged to have been obstructed was not prove by reliable and cogent evidence. At another place in the judgment he mentioned that the land on which Bissomal had made the construction belonged to the Town Area. At third place" in the judgment he observed that the land was a public was over which Bissomal had caused obstruction. Again at another place in the judgment he stated that: "This does not mean that I am giving any finding against the Town Area regarding the land over which Bissomal had constructed the house itself. The Town Area Committee is free to take suitable action for it if it is entitled to it." 6. Again at another place in the judgment he stated that: "This does not mean that I am giving any finding against the Town Area regarding the land over which Bissomal had constructed the house itself. The Town Area Committee is free to take suitable action for it if it is entitled to it." 6. Inconsistent observations or findings of the nature aforesaid took the Magistrate nowhere It seems to me that the learned Magistrate misdirected himself by thinking that it was his business in an enquiry u/s 139-A of the Code of Criminal Procedure to decide whether Bissomal had established that the land was not public land. It is obvious that questions of title of this kind are not intended to be decided in such an enquiry before the Magistrate These are matters which should be left to the decision of the Civil Court where the case can be properly fought out. The duty of a Magistrate u/s 139-A of the Code of Criminal Procedure, as I understand, is merely to see whether the denial of public right is frivolous or not. If the person 'who denies that right is able to produce some evidence, which prima facie there is no reason to disbelieve, it is not for the Magistrate to examine evidence on the other side by way of rebuttal and so forth and attempt to arrive at some final decision.' There does not appear any prima facie reason for thinking that evidence produced by Bissomal were absolutely unworthy of belief. Reliable evidence in the sense in which the term is used in Section 139-A means evidence on which it is possible for a competent court to place reliance. It does not mean evidence which definitely establishes the title to the land; because if that was the meaning of the term it would be unnecessary in any case to refer the matter to the Civil Court at all. It is therefore manifest that the intention of the Legislature obviously was that a question of title should not be decided in a magisterial proceeding by a Magistrate in a Criminal Court. I am in respectful agreement with the view expressed by Allsop, J. in Mohammed Khalil v. Emperor 1936 ALJR 75 and by the same learned Judge in Janardan Sarwp v. Emperor 1936 ALJR 1285. I am in respectful agreement with the view expressed by Allsop, J. in Mohammed Khalil v. Emperor 1936 ALJR 75 and by the same learned Judge in Janardan Sarwp v. Emperor 1936 ALJR 1285. I also agree with the view expressed by Boys, J in Manohar Singh v. Emperor AIR 1929 AP 220 that it if unfortunate that Section 139 A was put into the statute book in a later position than Section 137 and that the position given to it is apt to lead to its being overlooked when a Magistrate who is not thoroughly familiar with the procedure in studying Chap. 10 of the Code with a view to seeing how be should proceed. In this particular case the order dated 4-3-1955, passed by the Magistrate u/s 139-A was not a proper order. Added' to it there is the further circumstance that the Magistrate in the enquiry u/s 137 took upon himself the role of the Civil Court in deciding as to the title of the land. In the view that I take of the matter, the order of the learned Magistrate cannot possibly stand. I, therefore set the order aside and direct that the proceedings shall be stayed till the existence of the public right in the land has been decided by a competent Civil Court.