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1972 DIGILAW 238 (PAT)

SARWAN KUMAR SHARMA v. RAGHUNANDAN SAO

1972-12-11

B.D.SINGH

body1972
JUDGMENT : B.D. SINGH J. This application under Sections 435 and 439 of the Code of Criminal Procedure (hereinafter referred to as the Code) by the three petitioners is directed against an ORDER :dated the 19th March, 1969 passed by Sri B. N. Mahraj, Magistrate first class in a proceeding under Section 133 of the Code. In the said proceeding the petitioners were members of the second party whereas opposite party was the sole member of the first party. 2. In ORDER :to appreciate the points involved in this application it will be necessary to state briefly the facts. On a report of the Officer Incharge, Barh police Station a proceeding under Section 144 of the Code was drawn up by the Sub-divisional Magistrate on 12.6.1967 in respect of 53 decimals of land bearing plot no. 299 appertaining to khata no. 1320 situated in village Nathchawk. Opposite party had alleged that there was a ditch bearing plot no. 299 east of village Nathchawk in which the water of the whole village used to fall. By the side of the ditch there was a rasta for the whole village leading to east. South of the ditch there was the field of Sarwan Kumar Sharma petitioner no. 1 who was obstructing the water passase going to the ditch by throwing earth from the ditch. That action of petitioner no. 1 was being objected by the villagers and there was an apprehension of breach of the peace. The proceeding under Section 144 of the Code was later on converted into under Section 133 of the Code. The parties were asked to show cause and the petitioners were directed to remove the obstruction by 5th of August, 1967. On 16th of August, 1967 that the petitioner showed cause in which they denied that there was any water channel running east to west and a rasta adjoining sooth of the aforesaid ditch. The petitioners also stated in their show cause that the allegation of the existing rasta and water channel since more than 40 years by the opposite party was false. The petitioners' case was that they had cut their lands south of the Gair Mazlua plot no. 299 and they have the right to take earth from that plot in ORDER :to repair the land and the said right they were exercising since a long time. The petitioners' case was that they had cut their lands south of the Gair Mazlua plot no. 299 and they have the right to take earth from that plot in ORDER :to repair the land and the said right they were exercising since a long time. The learned Magistrate thereafter passed the impugned ORDER :. The operative portion of which reads as "members of the second party are directed to remove the encroachment from the land in question latest by 18.4.69 and in case of disobedience, the second party will be liable to the penalty provided by Section 188 Criminal Procedure Code" 3. Learned counsel appearing on behalf of the petitioners has assailed the impugned ORDER :and submitted that the learned Magistrate has failed to comply with the mandatory provisions contained under Section 139A of the Code. The relevant provisions read as: "(I) 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 137 or 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 Civil Court, and if he finds that there is no such evidence, he shall proceed as laid down in Section 137 or Section 138, as the case may require." Learned counsel for the petitioners on the basis of the above provisions submitted that on the facts and circumstances of the case after the petitioner had adduced evidence denying the existence of public right the jurisdiction of the Magistrate to continue the proceeding ceased. He ought to have referred the parties to the Civil Court. He ought to have referred the parties to the Civil Court. In ORDER :to substantiate his contention he relied on a Bench decision of the Court (1) Darsan Ram V. The State and others (A.I.R. 1959 Patna 81) Corresponding to 1958 B. L. J. R. 655) where Kanhaiya Singh and Untwalia, JJ while dealing with the provisions of Section 139A of the Code observed: "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 S8ction 138, as the case may be. The procedure laid down in Section 139A requires, first, that the party against whom provisional ORDER :has been made, shall appear before the Magistrate and deny the existence of the public right in question, secondly, that he shall produce some reliable evidence, and, thirdly, that such evidence shall be legal evidence shall support the denial. If these three conditions are satisfied, then the Magistrate's jurisdiction to continue the proceeding ceases. He has no jurisdiction to weigh the evidence and decide on which side the balance leans. The criterion is that the Magistrate should find evidence supporting the denial, which he can pronounce reliable. If there is such an evidence, it is sufficient to oust his jurisdiction to continue the proceedings further. The enquiry envisaged in Section 139-A 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 nom existence of the public right should be affirmatively proved. It is, therefore, not the duty of the Magistrate to take evidence of both the sides 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. If the evidence adduced by the party against whom the ORDER :is made is legal and reliable, there is an end of the matter, and the Magistrate cannot but stay his hands and refer the parties to the Civil Court. If the evidence adduced by the party against whom the ORDER :is made is legal and reliable, there is an end of the matter, and the Magistrate cannot but stay his hands and refer the parties to the Civil Court. There lordships further observed that "Where therefore the Magistrate misdirects himself in allowing both the parties to adduce evidence and then reach his conclusion, the ORDER :of the Magistrate is wholly wrong, being contrary to the provisions of section 139A and Cannot be maintained." Learned counsel submitted that in this case also the Magistrate allowed both the parties to adduce evidence and weighed their evidence and has come to the conclusion. Therefore, his ORDER :is vitiated. A similar view was taken bi this Court in (2) Criminal Revision No. 774 of 1969 decided on the 3rd October, 1969. The note portion of which is reported in 1972 B. L.J. R. page VII where Misra, C. J. (as he then was) while dealing with the provisions contained under Section 139A of the Code observed, that it does not require that there should be conclusive evidence in favour of the party denying existence of the public right but that there should be only reliable, that is to say, evidence of such a character that prima facie it may appear that there is some substantial basis of the claim of the person denying the existence of the public right. If that be so, Section 139-A may be immediately attracted and criminal court bas to stay its hands in the matter and the matter has to be decided by a competent civil court. It may be that the civil court, on fuller consideration of the circumstances in which rent was fixed, might come to a different conclusion or same conclusion. In my opinion, in view of the above provision of the Code and the observations of their Lordships the contention of the learned counsel for the petitioners is well founded. The application is allowed and the impugned ORDER :of the learned Magistrate is set aside and the case is sent back to the Magistrate for disposal in accordance with law from the stage when the petitioners appeared and filed show cause petition denying the existence of the public right. Application allowed.