Research › Search › Judgment

Allahabad High Court · body

2010 DIGILAW 1279 (ALL)

SITA RAM MISHRA v. STATE OF U. P.

2010-04-21

SHRI KANT TRIPATHI

body2010
JUDGMENT Hon’ble Shri Kant Tripathi, J.—The learned counsel for the applicant prays for and is permitted to delete the name of the respondent No. 4. 2. Heard the learned counsel for the applicant Sita Ram Mishra, the learned AGA for the respondents and perused the record. 3. It appears that the Sub Divisional Magistrate, Salempur, district Deoria has proceeded against the applicant under Section 133, Cr.P.C. and passed the conditional order on 27.6.2009, in pursuance whereof the applicant filed a detailed objection dated 3.8.2009 denying the existence of public way on the disputed land. The learned Executive Magistrate, on receiving the objection, instead of deciding the question whether or not the disputed land is a public way, proceeded with the matter under Section 138, Cr.P.C., vide his order dated 15.2.2010. 4. The learned counsel for the applicant submitted that when the applicant had pleaded that the land in suit is not a public way on spot, the learned Executive Magistrate was bound to decide that question before holding the proceeding under Section 138, Cr.P.C. In this connection, the learned counsel for the applicant placed reliance on the provisions of Section 137, Cr.P.C., which provides : “137. Procedure where existence of public right is denied. (1) 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 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 Court; and if he finds that there is no such evidence, he shall proceed as laid down in Section 138. (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 Court; and if he finds that there is no such evidence, he shall proceed as laid down in Section 138. (3) A person who has, on being questioned by the Magistrate under sub-section (1), failed to deny the existence of a public right of the nature therein referred to, or who, having made such denial, has failed to adduce reliable evidence in support thereof, shall not in the subsequent proceedings be permitted to make any such denial. “ 5. A perusal of the aforesaid provision reveals that if the person against whom the order under Section 133, Cr.P.C. has been made, appears before the Executive Magistrate, the Executive Magistrate is bound to question him as to whether he denies the existence of any public right in respect of the subject matter of the case and if he denies existence of any such right, the proper course for the Executive Magistrate is to inquire into that matter before holding a proceeding under Section 138, Cr.P.C.. In other words, if the person against whom an order under Section 133 has been made, denies the existence of a public right in respect of the subject matter of the case, the Executive Magistrate has to hold an inquiry to find out whether or not there is any reliable evidence in support of such denial. If there is reliable evidence in support of the denial, the Magistrate has to stay the proceedings of the case until the matter of existence of the public right has been decided by the competent Court. The Executive Magistrate has jurisdiction to proceed under Section 138, Cr.P.C., only when there is no reliable evidence to show that the alleged right is a public right or there is no denial of existence of any public right. It may also be mentioned that if the person concerned fails to deny the existence of public right or fails to adduce reliable evidence in support of such right, he will not be permitted to make any such denial in any subsequent proceeding. It may also be mentioned that if the person concerned fails to deny the existence of public right or fails to adduce reliable evidence in support of such right, he will not be permitted to make any such denial in any subsequent proceeding. In view of the legal position as emerged from the provisions of Section 137, Cr.P.C., the proper course for the Executive Magistrate was to hold an inquiry to find out whether or not there is reliable evidence in support of the plea that there exists no public way on the disputed land, specially when the applicant had specifically denied the existence of such right. 6. In view of the reasons stated above, the impugned order, which has been passed in utter disregard to the provisions of Section 137, Cr.P.C., cannot be upheld. 7. The petition is allowed. The impugned order dated 15.2.2010 passed in case No. 16 of 2010 (State v. Sitaram Mishra) by the Sub Divisional Magistrate, Salempur, district Deoria, is set aside. The learned Executive Magistrate is directed to hold an inquiry under Section 137(2), Cr.P.C. to find out as to whether there is any reliable evidence in support of the plea of denial of existence of public right of way on the land in dispute. If the learned Magistrate on such inquiry comes to the conclusion that the denial plea is supported with any reliable evidence, he shall stay the proceedings of the case until the matter of existence of public right of way on the disputed land has been decided by the competent Court. If the denial plea is not supported with any reliable evidence, the Magistrate may proceed under Section 138, Cr.P.C. ————