NANJAYYA HEGDE Vs. MAHABALA SHETTY

JUDGEMENT

(1.) This Revision Petition is directed against the order passed by the Sub-Divisional Magistrate, Coondapur on 3rd July 1967 in M.C. 3 of 1966 on the file of his Court in a proceeding under Section 138 of the Code of Criminal Procedure. In that proceeding a preliminary order against the Respondent was passed to remove the obstruction alleged to have been caused by him in a mamool pathway in Abbedi village. The petitioner had alleged that there existed a mamool pathway passing through Section Nos. 92, 245, 102/1 and 101 of Abbedi village and that the respondent was obstructing the use of the said pathway. It was further alleged by him that the pathway was a public pathway. But the respondent contended that the pathway was a private cart track and not a public path, way as alleged by the petitioner. The trying Magistrate was of the view that the pathway was not a public pathway as alleged by the petitioner and by the order in revision set aside the preliminary order passed by him.

(2.) Mr. Jagannatha Shetty, learned Counsel for the petitioner argued that the Magistrate has not followed the obligatory provision contained in Section 139-A of the Code of Criminal Procedure and therefore the order made by him is liable to be set aside. He submitted that the Respondent had denied that the pathway was a public pathway. Whether or not there was a bona fide dispute with regard to the existence of the public pathway, it was incumbent on the Magistrate to make as enquiry first as contemplated in Section 139-A of the Code of Criminal Procedure which he has not done. I think the contention advanced on behalf of the petitioner is well founded. Section-189-A of the Code of Criminal Procedure provides:

(3.) It is thug clear that when an application is filed under Section 133 of the Code of Criminal Procedure on the ground that a certain person has put up an obstruction on a path, which is alleged to be a public path, the Magistrate should send a show cause notice to the counter petitioner and when ha or his representative appears, the Magistrate should question him as to whether he denied the existence of the public way; and if he did, the Magistrate has to enquire into the matter and if he finda reliable evidence in support of the denial, he should etiy the proceedings until the question ia decided by a competent civil court. If on the other hand, he finds that there is no reliable evidence in support of the denial, he has to proceed under Section 137 of the Code of Criminal Procedure.