MOHAMMED MASTER Vs. BEERAN

JUDGEMENT

(1.) THIS criminal miscellaneous petition raising a question relating to the scope of inquiry under S. 137 of the Criminal Procedure code came up before the Division Bench pursuant to a reference made by one of us.

(2.) ON a mass petition filed by the first respondent and others before the Sub Divisional Magistrate, Perintalmanna, complaining of the obstruction by the petitioners herein of a public pathway said to be running along a plot of land in Parappur village within the limits of Kottakkai police station, the Sub Divisional Magistrate instituted proceedings under S. 133 of the Criminal Procedure Code and passed a conditional order on January 12,1977, under sub-section (1) of S. 133 of the Criminal Procedure Code in accordance with the provisions thereunder and served the same on the petitioners herein, who are counter-petitioners in the proceedings initiated by the Sub Divisional magistrate. The petitioners appeared before the Sub Divisional Magistrate and denied the existence of any public right in respect of the pathway, the subject-matter of the proceedings. The case was then adjourned for the purpose of inquiry under sub-section (1) of S. 137 of the Criminal Procedure Code. "thereafter an application was filed by the 1st respondent herein praying that they should be permitted to partake in the inquiry proceedings under S. 137 (1 ). The petitioners then filed an application contending that the first respondent should not be permitted to participate in the inquiry under S. 137 (1), which is of an ex parte summary nature; and is purely a matter between the court and the person or persons against whom the conditional order was passed and that the respondent has no right to be represented or to be heard at the stage of an inquiry under S. 137 of the Criminal Procedure Code.

(3.) THE learned advocate appearing on behalf of the first respondent, on the other hand, contended that the inquiry contemplated is a judicial process; that in the course of an inquiry under S. 137 (1) the aggrieved party at whose instance the proceedings were initiated has a right to be heard at that stage itself and also a right to cross-examine the witnesses examined in support of the denial and also to adduce evidence to show that the denial is not bona fide and that the evidence adduced in support of the denial was not reliable. THE counsel also submitted that the principles of natural justice require that even in an inquiry of the nature contemplated under S. 137 (1) the aggrieved party should be given an opportunity to be heard before the court stays the proceedings until the matter of the existence of the public right has been decided by a competent court.