OUSEPH Vs. VARKEY

JUDGEMENT

(1.) FIRST Class Magistrate.

(2.) THE point raised on behalf of the revision petitioner is that the procedure followed by the lower court is illegal and unwarranted and that as such the final order passed by the learned Magistrate is liable to be quashed. I think that this contention is well-founded and has to prevail. THE action contemplated by Chap. 10 of the Code of Criminal Procedure is regulated by the special procedure prescribed by the several sections of that chapter. Whenever a District Magistrate, a Sub-divisional Magistrate or a magistrate of the First Class is satisfied by a police report or other information or evidence that there is a prima facie case for taking action under S. 133, it will be competent for him to pass a preliminary order as contemplated by that section for the purpose of preventing obstruction, nuisance or danger to the public in the use of any way, river, channel or place. After passing such an order, he has to proceed strictly in accordance with the procedure laid down by S. 139a. This section contemplates three distinct stages in that procedure. THE first stage is reached when the party against whom the preliminary order is issued appears before the Magistrate in pursuance of the notice issued to him. When he so appears, the section states that the Magistrate shall question him as to whether he denies the existence of the public right said to be obstructed by him. If he denies the existence of that right, the Magistrate-shall before proceeding under S. 137 or under S. 138, proceed to inquire into the matter for the purpose of deciding as to whether there is prima facie acceptable evidence in support of such a denial. It is obvious that the evidence at this stage of the inquiry is to be confined to the existence or otherwise of the public right in question. If the conclusion reached by the Magistrate as a result of the inquiry is that there is prima facie evidence in support of the denial of the public right, the Magistrate shall record his findings to that effect and stay the proceedings started by him and leave the question of the existence of the public right to be decided by a competent civil court.

(3.) IN the result this revision petition is accepted and the final order passed by the Magistrate in Miscellaneous Case No. 24 of 1953 is set aside. The case is sent back to the lower court for fresh inquiry and disposal in accordance with law and in the light of the observations made above. Allowed.