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2015 DIGILAW 1147 (KER)

Lijith v. Padmaja

2015-08-17

K.HARILAL

body2015
ORDER : K. Harilal, J. 1. The petitioners are the 1st and 2nd respondents in Crl. R.P. No. 10/2012 on the files of the Court of Session, Thalassery. The above revision was filed by the 1st and 2nd respondents herein, under S. 397 of the Cr.P.C. challenging the legality and correctness of the order passed in M.P. No. 14/07 on the files of the Sub-Divisional Magistrate's Court, Thalassery. The above petition was filed by the petitioners herein under S. 133 of the Cr.P.C., alleging that the respondents 1 and 2 obstructed the public way, which is the only access to the petitioners' house, by illegally and unauthorisedly constructing steps on the way. On receipt of the said complaint, the proceedings under S. 133 of the Cr.P.C. has been initiated against the respondents herein and they were served with a conditional order under S. 133 of the Cr.P.C. On receipt of the conditional order, the petitioners herein entered appearance and adduced evidence to prove that there was a public way as alleged by them and the 1st and 2nd respondents herein obstructed the said public path by constructing steps in the said pathway. After considering the rival pleas and evidence let in by both parties, the Sub-Divisional Magistrate passed an order under S. 138(2) of the Cr.P.C., making the order passed earlier under S. 133(1) absolute. The said order was challenged in the above revision and after considering the arguments advanced by both parties, the learned Sessions Judge remitted the case back on a finding that the Sub-Divisional Magistrate has not complied the statutory mandate under S. 137 of the Cr.P.C. by not questioning the respondents herein. The legality and correctness of the said findings are under challenge in this Revision Petition. Heard the learned counsel for the petitioners and the learned counsel for the 1st and 2nd respondents. 2. The learned counsel for the petitioners submits that the order passed under S. 138 by the Sub-Divisional Magistrate itself shows that the respondents were questioned under S.137 of the Cr.P.C as to whether they deny the existence of the public way or not. 2. The learned counsel for the petitioners submits that the order passed under S. 138 by the Sub-Divisional Magistrate itself shows that the respondents were questioned under S.137 of the Cr.P.C as to whether they deny the existence of the public way or not. According to the learned counsel, the court below went wrong by mis-conceiving the scope and extent of 'questioning' provided under S. 137 of the Cr.P.C. When the parties entered appearance and adduced evidence in denial of existence of public way, that itself shows that the denial of right was the result of questioning. 3. Per contra, the learned counsel for the respondents advanced arguments to justify the findings, whereby the learned Sessions Judge remitted the case back for questioning under S. 137 of the Cr.P.C. 4. The question to be considered is, what is the scope and extent of questioning provided under S. 137 of the Cr.P.C.? Going by S. 137 of the Cr.P.C., the statutory mandate is that the Magistrate shall question him as to whether he denies the existence of any public right in respect of the way, river or channel or place, and if he does so, the Magistrate shall, before proceeding under S. 138 shall enquire into the matter. On a close reading of the above Section, I am of the opinion that what is intended by the Legislature is to provide an opportunity to the respondents at the first instance itself whether they deny the right claimed by the petitioner/opposite party in respect of the way, river, channel or place. The expression "questioning" is not akin to that of questioning under S. 313 of the Cr.P.C. If the party denies the existence of the way, it is incumbent upon the Magistrate to proceed to the next stage, so as to provide him an opportunity to adduce evidence in support of his denial. In short; the expression "question him" contemplated under S. 137 of the Cr.P.C. is confined to question him as to whether he denies the existence of public right in respect of way, river, channel or place only. In case he denies the public right, the questioning comes to an end and there commences enquiry, requiring production of evidence for the denial of right by him. 5. In the instant case, the order passed under S. 138(2) of the Cr.P.C., it is specifically stated that both parties filed documents. In case he denies the public right, the questioning comes to an end and there commences enquiry, requiring production of evidence for the denial of right by him. 5. In the instant case, the order passed under S. 138(2) of the Cr.P.C., it is specifically stated that both parties filed documents. The relevant portion of the order passed under S.132(2) reads as follows: "After issuing the conditional order, the first hearing was conducted in this court on 26.9.2007. Both parties present on the same date. The case adjourned to 12.10.2007 for filing document. Both parties filed documents on the next hearing date i.e., on 14.11.2007. Denial evidence of counter petitioner has taken on 28.11.2007." In the above para, it is specifically stated that denial evidence of counter petitioner has taken place on 28.11.2007. It is implied in the above sentence that whether the respondents were questioned as to whether they deny the existence of public way as alleged by the complainant. I have carefully considered the decision in Jose V. Tharayil v. Revenue Divisional Officer, Fort Kochi & Anr. (2010 (2) KLT SN 74 (C. No. 75) : 2010 (2) KHC 217) also. I am of the opinion that the above decision does not prescribe a specific manner of questioning and it simply says that the respondents must be questioned as to whether they deny the existence of the way or not. In that case, a perusal of records revealed that the R.D.O. has not maintained any proceedings paper or Order Sheet from which it could be discerned, whether he questioned the 2nd respondent to find out whether he denied the existence of public right in respect of the pathway in question. But here the proceedings papers are well maintained and it is discernible from the proceedings paper that the respondents were questioned as to whether they deny the public right. Thus, the context under which the above decision was held is entirely different from that of this case. The court below went wrong by stretching out the expression 'question him' in a way, which was not contemplated under S. 137 of the Cr.P.C. In the above analysis, I set aside the impugned order under challenge and the matter is remitted to the Sessions Court, Thalassery. The learned Sessions Judge is directed to consider the matter afresh on merits and pass orders accordingly.