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1973 DIGILAW 5 (BOM)

VICENT J. CARDOZO v. STATE

1973-01-18

TITO MENEZES

body1973
ORDER The applicant Vicent J. Cardozo filed this revision application against the judgment and order of the Sub-Divisional Magistrate, Goa North Division Panaji, dated 22-4-71 passed under Section 133 of the Cr.P.C. for the removal of a wall and the order in revision passed by the Additional Sessions Judge, Mapusa on 13-7-72 dismissing the revision application filed against the order of the Sub-Divisional Magistrate Goa North Division. Panaji. 2. The Police made a report to the Sub-Divisional Magistrate that the petitioner had built a wall and obstructed the public way giving access to the bank of the river. The Learned Sub-Divisional Magistrate made a conditional order on 9-2-71 under Section 133 Cr.P.C. and issued a notice to the petitioner to show cause why the order should not be made absolute. The petitioner appeared before the Sub-Divisional Magistrate on 22-2-71 and denied the existence of any public right in respect of the way. He further stated in the written application, which he produced on 22-2-71, when he appeared before the Magistrate, that the wall in question was existing there for a number of years to protect illegal entry into his property. He further stated in his application that he was enclosing in the said application a certificate issued by the "Regedor" of the Village that there was no passage for the members of the public. Such a certificate cannot now be traced in the file of the proceedings of the Magistrate and also there is no endorsement made in the application submitted by the petitioner on 22-2-71 when the application was presented to the effect that the certificate of Regedor was not presented along with the application, though there is an endorsement on the application acknowledging its receipt. The Sub-Divisional Magistrate, therefore, adjourned the case "for evidence". On 6-4-71 the Learned Magistrate recorded the evidence on behalf of the Respondent No. 2. On 22-4-71 he made a local inspection and prepared a report of the inspection and on the same day he passed the impugned order. The learned Sub-Divisional Magistrate states that the petitioner did not lead any defence evidence. 3. The order of the Learned Magistrate dated 22-4-71 which is impugned by this revision application is very short. The findings of the Magistrate are containing in paragraph 3 of the order. It runs over about 8 lines. The learned Sub-Divisional Magistrate states that the petitioner did not lead any defence evidence. 3. The order of the Learned Magistrate dated 22-4-71 which is impugned by this revision application is very short. The findings of the Magistrate are containing in paragraph 3 of the order. It runs over about 8 lines. That paragraph speaks only about the construction of the wall locking of the way and inconvenience caused by such obstruction. The only sentence that casually makes reference to the use of the way by he residents reads as follows :- "I therefore find that the opponent has blocked the obstruction which was lawfully used by the residents of that area." This sentence contains the conclusion. No reason for the conclusion is given any where in the impugned order, Besides, the passage merely states that the petitioner "blocked the obstruction which was lawfully used by the residents of that area." No mention is made of the "way." This appears to be by oversight. Assuming that the word obstruction was used for the word "way" what the Learned Magistrate has done in the only relevant passage is to state that the way was lawfully used by the residents. He has not stated that the way was a public way. Even the private way may be bona fide used by the residents if its use is authorised by the owner of the land over which the way runs. 4. In any event as the applicant had denied the existence of any public right in respect of the way. It was the duty of the Learned Magistrate to proceed to enquire into the matter under Section 139-A(1) of the Cr.P.C. From the record and proceedings of the Magistrate's Court there is only one inquiry made before the final order was passed. It is evident from the fact that the evidence of the respondent No. 2 and his witnesses, was recorded; that the Learned Magistrate proceeded under Section 137 Cr.P.C. before making an inquiry under Sec. 139-A(1). The inquiry contemplated by Sections 138, 139-A(1) is an ex parte and unilateral inquiry made for the purpose of ascertaining whether there is any reliable evidence in support of the denial of the existence of the public right in respect of the way. In such inquiries the opposite party is not heard. 5. It is argued by Dr. The inquiry contemplated by Sections 138, 139-A(1) is an ex parte and unilateral inquiry made for the purpose of ascertaining whether there is any reliable evidence in support of the denial of the existence of the public right in respect of the way. In such inquiries the opposite party is not heard. 5. It is argued by Dr. Lobo, Learned Advocate for the applicant that Section 139-A indicates that the Magistrate must give a finding as to the existence or otherwise of reliable evidence in support of the denial of the existence of public right in respect of the way made by the petitioner. It is further contended by Dr. Lobo that the inquiry under Section 139-A must be ex parte and that evidence in an inquiry under Section 139-A must be taken at the stage different from the stage at which evidence under Section 137 is taken. Dr. Lobo relies on Darsan Ram v. State, AIR 1959, Pat. 81 = (1959 Cri.L.J. 230) and on Bejay Krishna v. Provash Ranjan AIR 1959. Cal 599 = (1959 Cri.L.J. 1160). 6. I, therefore find that the Magistrate acted without jurisdiction when he proceeded to pass the final order holding a regular inquiry into the matter under the provisions of Section 139-A(1) Cr.P.C. ORDER The Revision Application is allowed. The orders of the Sub-Divisional Magistrate Goa North Division. Panaji dated 22-4-71 and that of the Additional Sessions Judge, Mopusa dated 13-7-72 are set aside. The case is remanded to the Sub-Divisional Magistrate for proceeding according to law in the light of the observations made by me in the judgment. Application allowed.