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2004 DIGILAW 1261 (PNJ)

Balwant v. Jai Singh

2004-11-17

SATISH KUMAR MITTAL

body2004
Judgment Satish Kumar Mittal, J. 1. Petitioner Balwant has filed this petition under Section 482 of the Code of Criminal Procedure (hereinafter referred to as `the Code) for quashing the order dated 8.6.1992 passed by the Sub-Divisional Magistrate, Narwana vide which the conditional order dated 5.3.1990 passed by his predecessor under Section 137(2) of the Code for removal of the encroachment made by the petitioner was made absolute under Section 138 of the Code, and the order dated 16.2.1995 passed by the Additional Sessions Judge, Jind, vide which the revision against the aforesaid order was dismissed. 2. The brief facts of the case are that the respondents filed an application under Section 133 of the Code before the Sub-Divisional Magistrate, Narwana alleging therein that the petitioner had made an encroachment upon a public street by constructing a room. On the said application, a notice was issued to the petitioner and conditional order dated 5.3.1990 was passed under Section 133 of the Code for removing the alleged encroachment in the street. In response to that notice, the petitioner denied the existence of the street to the extent of the disputed site and claimed that he did not make any encroachment on the public street on which his house is existing for the last so many years. Thereafter, the Executive Magistrate held an enquiry in the matter by treating it as a summon case under the provisions of Section 138 of the Code and came to the conclusion, on the basis of the evidence led by the parties, that the petitioner had made encroachment on the public street and thus made the conditional order dated 5.3.1990 absolute. 3. Against the aforesaid order, the petitioner filed a revision but the same was dismissed by the Additional Sessions Judge, Jind vide order dated 23.5.1990. 4. Thereafter, the petitioner filed Criminal Misc. No. 1184-M of 1990 in this Court under Section 482 Cr.P.C. which was allowed on 26.3.1991 and it was held by this Court that the trial Court as well as the revisional Court did not comply with the provisions of Section 137 of the Code as the question of existence or non-existence of the passage was not inquired into in spite of the fact that the petitioner, in reply to the notice of conditional order, had specifically denied the existence of the public passage. In such situation, it was mandatory for the Executive Magistrate to inquire into such matter before proceeding under Section 138 of the Code. If on inquiry the Magistrate finds that there is reliable evidence in support of such denial, then he would stay the proceeding until the matter of existence of such right has been decided by a competent Court. Thus, after setting aside the orders passed by the Courts below, the matter was remanded to the Executive Magistrate to decide the case afresh by following the procedure laid down under Section 137 of the Code. 5. After the remand, the Executive Magistrate while conducting the enquiry as contemplated under Section 137(2) of the Code, provided full opportunity to both the parties to lead evidence. Respondent Jai Singh and his counsel got recorded their statements to the effect that they did not want to give any fresh evidence as their evidence already on record be taken into consideration. Petitioner Balwant led evidence in support of his claim. On the basis of the evidence led by the parties, the Executive Magistrate vide order dated 8.6.1992 found that the right claimed by the petitioner was not established. He came to the conclusion that the petitioner had encroached upon the public street by constructing kotha and thereby closed the public street which caused inconvenience to the general public. After coming to the said conclusion, the conditional order dated 5.3.1990 passed by his predecessor for removing the encroachment was made absolute. 6. Against the aforesaid order, the petitioner filed a revision which was dismissed by the Additional Sessions Judge, Jind on 16.2.1995 while confirming the finding recorded by the trial Court to the effect that the petitioner had encroached upon the public street by constructing a kotha and thereby closing the passage causing inconvenience to the general public. 7. Hence this petition. 8. I have heard the counsel for the parties and gone through the impugned orders. 9. Counsel for the petitioner tried to canvass that the findings recorded by the Courts below about the alleged encroachment made by the petitioner on the public street is without any evidence on the record. He submitted that after the remand of the case, the Executive Magistrate did not record any evidence and no inquiry as contemplated under Section 137(2) of the Code was held, therefore, the impugned orders are liable to be set aside. 10. He submitted that after the remand of the case, the Executive Magistrate did not record any evidence and no inquiry as contemplated under Section 137(2) of the Code was held, therefore, the impugned orders are liable to be set aside. 10. I do not find any force in the aforesaid contention raised by the counsel for the petitioner. After the remand, the Executive Magistrate held an enquiry as contemplated under Section 137(2) of the Code and gave offer to both the parties to lead evidence. The respondents stated that the evidence already led by them was sufficient to hold an inquiry under Section 137 of the Code. The petitioner was given opportunity to lead evidence but he closed his evidence after recording his statement. On the basis of the evidence available on the record, the Executive Magistrate recorded a finding of fact that a public street was existing on the spot which was illegally encroached upon by the petitioner. Prima facie, the claim put forward by the petitioner did not establish his title or ownership over the site which was found to be a public street. Under sub-section (2) of Section 137 of the Code, the Executive Magistrate is required to stay the proceedings until the matter of the existence of such right has been decided by a competent Court only in case the Executive Magistrate in the inquiry finds that there is some reliable evidence in support of the denial of the existence of the public street or any public right on the land in question. In this case, after the remand, an inquiry was held by the Executive Magistrate as contemplated under sub-section (2) of Section 137 of the Code. The contention of the petitioner that no such inquiry was held cannot be accepted as the same is contrary to the record. 11. Learned counsel for the petitioner has relied upon the decision of the Patna High Court as Brahmdeo Singh v. Indradeo Singh, 1984 Criminal Law Journal 300; Sri Ram v. State of U.P., 1992 Criminal Law Journal 181 and Asa Singh v. Pahoo Singh, 1973 C.L.R. 18. 12. 11. Learned counsel for the petitioner has relied upon the decision of the Patna High Court as Brahmdeo Singh v. Indradeo Singh, 1984 Criminal Law Journal 300; Sri Ram v. State of U.P., 1992 Criminal Law Journal 181 and Asa Singh v. Pahoo Singh, 1973 C.L.R. 18. 12. The judgments cited by the learned counsel for the petitioner only lay down the procedure that before passing a final order under Section 138 of the Code, the Executive Magistrate is required to hold an inquiry under Section 137 of the Code regarding the existence of any public right or public street. In the instant case, the said inquiry was conducted by the Executive Magistrate before passing the order under Section 138 of the Code. Thus, the aforesaid cases relied upon by the learned counsel for the petitioner are not relevant. Since a finding of fact has been recorded by the Courts below regarding the existence of the public street on the site in dispute and the encroachment made by the petitioner, no interfere in the said finding of fact is required in the inherent jurisdiction under Section 482 of the Code. No jurisdictional error or any patent illegality has been pointed out by the learned counsel for the petitioner in the impugned orders. Even otherwise, the order under Section 138 of the Code passed by the Executive Magistrate in the proceeding of Section 133 of the Code will not operate as res judicata between the parties in case the aggrieved party files the civil suit to establish his right. The proceedings under Section 133 of the Code are the summary proceedings. Even if the petitioner was having any legal title or right, he can establish the same before the Civil Court. 13. In view of the aforesaid, I find no merit in this petition and the same is hereby dismissed.