NARAYANAN Vs. GOVINDAN

JUDGEMENT

(1.) ON a petition from the first respondent herein that the revision petitioner had recently constructed a compound wall obstructing vehicular traffic through the Ezhara road in Edakkad amsom, the learned executive First Class Magistrate of Tellicherry, was satisfied that emergent action was necessary and he made a conditional order under clause (1) of S. 133, cr. P. C. , requiring the revision petitioner to remove the said obstruction or to show cause why the order should not be enforced.

(2.) S. 139-A (1), Cr. P. C. , provides that where an order is made under S. 133, 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 and hold an inquiry; and sub-section (2)provides if in such inquiry the Magistrate finds that there is no reliable evidence in support of such denial, he shall proceed as laid down in S. 137 or S. 138, cr. P. C. If the Magistrate takes the contrary view he has to stay the proceedings until the matter is decided by a competent civil court. There is no doubt a technical non-compliance of S. 139-A in this case inasmuch as there was no questioning and no finding recorded that there is no reliable evidence in support of the denial of the public right. The learned counsel for the petitioner would, therefore, argue that the entire proceedings have been vitiated and the order has to be set aside. The memorandum of revision petition shows that what is complained against is that enquiry under S. 137, Cr. P. . has not been conducted.

(3.) REGARDING non-compliance with the provisions of S. 342 cr. P. C. questioning of the accused, the Supreme Court in Moseb Kaka v. State of West Bengal AIR . 1956 S. C. 536 stated: "it is well recognisecl that a judgment is not to be set aside merely by reason of inadequate compliance with S. 342, Cr. P. C. It is settled that clear prejudice must be shown. It is up to the accused or his counsel in such cases to satisfy the court that such inadequate examination has resulted in miscarriage of justice If the counsel was unable to say that his client had in fact been prejudiced and if all that he could urge was that there was a possibility of prejudice, that was not enough. " The same principle must apply in the case of S. 139-A (1)also; that is to say, unless prejudice can be clearly demonstrated, the non-questioning of the person concerned and recording a finding cannot be deemed to vitiate the Magistrate's order.