RAM PRATAP Vs. RAM AUTAR

JUDGEMENT

(1.) The peti tioners figured as; opposite parties in a processing under Section 13. 3, Cr. P. C. , in the court of judge visional Magistrate, Karvi, district Banda. On notice as provided under mat section, omega issued, they filed a writ ten statement (Annexure '2' to the counter-affidavit.) denying the claim that any public- path existed and any obstruction has been caused. In support of such denial Ram Pratap petitioner examined himself (state ment is Annexure M' to the petition) and produced one Jagdeo P. W. 1 (Annexure '2' to the petition) and an inspection note of Shah Aziz Ahmad dated July 8, 1954 in a case, instituted by Mitiganjan against very Ram Pratap relating to obstruction of pass age under Section 133, Cr. P. C. , was also filed as Annexure '3' to the present petition. The Magistrate vide its order dated March 12, 1981 observed that the plea of denial is rejected and directed that the case be pro ceeded under Section 138, Cr. P. C. The case was then proceeded accordingly and the evidence on behalf of the present opposite party was recorded and vide order dated April 30, 1981 (Annexure '6' to the petition), the Magistrate directed that the Chabutra, which has been constructed, caus ing obstruction be removed. The matter then went in revision. The then Sessions Judge, Banda, vide its judgment dated July 6, 1981 (Annexure '1' to the petition) re jected the revision. The petitioners have urged that the provisions of Section 131, Cr. P. C. , have been completely violated on a number of grounds set up in the objec tion. It is. further, urged that the final de cision in the case is also erroneous. The petitioners prayed that the orders passed against them be quashed and further orders, as this Court deems fit in the circumstances of the case, may be passed. The point which has been much stress ed is that the provisions of Section 137, Cr. P. C. have been completely violated by the Magistrate and the Magistrate has misread the objection of the petitioners as well as the statement of the witness produced by the present petitioners as to attribute certain admissions, which actually were neither made nor existed. The learned counsel for the opposite party No. 1, apart from repelling such argu ments, urged that once the court entered into the stage of further evidence under Section 138, Cr. P. C. , and fresh opportunity became available to the petitioners, any want of strict compliance of Section 137 would not defeat the proceedings, nor this Court can exercise any inherent powers. Before referring to the pronouncements cited before this Court, 1 may at the very outset observe that the provisions contained under Section 137 new Criminal Procedure Code, corresponding to section 139-A of the old Cr. P. C. , have far reaching implications and such provisions have been made on certain important considerations. Whether any place is a public place or a private place is ordinarily a matter within the ambit of civil jurisdiction. On conside rations of certain public policies and con venience a remedy under Section 133, Cr. P. C. , has been provided to me certain ugly situations and at the same time when sue matter has been brought under the ambit of the criminal jurisdiction, the Legis lature has taken care to safeguard the right of the party concerned to a certain extent. Will) this object in view it has been provided under Section 137, Cr. P. C. (new) corres ponding to Section 139-A, Cr. P. C. (old), that the opposite side will be afforded an ex parle opportunity to give evidence in support of his denial of the existence of such public right as has been set up, and if on enquiry the Magistrate finds that there any reliable evidence in support of such denial, he shall stay the proceedings until the matter of existence of such right has been decided by a competent civil court. The Legislature has thereby itself visualised that there may be a frivolous and baseless denial, in which case in the very fitness of things the criminal court has been authoris ed to proceed. On the other hand there may be denial supported by reliable evidence and when that is the position, the matter is to be adjudicat ed to the civil court, which has the am hit and over all jurisdiction in respect of the civil dispute. This apparently is the policy behind the enactment of Section 137, Cr. P. C. , and the matter has to be approached from that angle. The learned counsel for the petitioners has relied upon the cases of Musaddi v. State 1971 A. C. C. 205, and Haji Rahmatuilah v. Moham mad Saddiq 1978 A. C. C. 289, Both the pronouncements are of this Court. In the case of Haji Rahmat Ullah (supra), the earlier case of Musaddi was followed. The principles laid down in these two pronouncements is this that if the Magistrate rejects the evidence led under Section 137, Cr. P. C. , or considers such evidence in support of the denial unre liable, he must give reasons for the same considering the evidence from that angle. Reliance has also been placed upon the case of Mahavir Singh and others v. Stale 1980 Alld. Crl. Report 264. In that case the powers under Section 482, Cr. P. C. , were exercised for non-compliance of the provisions of the present Sec tion 137, Cr. P. C. The learned counsel for the petitioners has also relied upon the case of Jai Ram Singh v. Bhulay A. I. R. 1963 Alld. 27, and the views that I have expressed regarding the scope, ambit and implication of Section 139 old Cr. P. C. corresponding to Section 137, Cr. P. C. , is fortified by the view expressed is this case observing as follows:- "reliable evidence is the evidence of reliable person and all that a Magistrate has to satisfy is that the evidence produced is not false. What is meant by the section is not that the Magistrate should weigh the evidence produced by both the parties and then come to the conclusion, which is more reliable or should be pre ferred. The object of Section 139-A, Cr. P. C. , is that if the denial of the pub lic pathway involves a bonfires claim on the part of the persons denying the public right, the matter should be decided be a competent civil court and not by a Ma gistrate in a summary enquiry provided under Section 139-A. " The learned counsel for the opposite side relied upon the case of Amur Singh v. State of U. P. 1980 Cr. L. J 1350. I do not find that tins pronouncement in any way helps the oppo site party. What has been observed is that Section 137, Cr. P. C. (. new) does not require any definite proof supporting the denial and the scope of the enquiry under Section 137, Cr. P. C. , is confined only to find whether there is prima jade evidence in support. The learned counsel for the opposite side also relied upon the case of Gulao singh v. State A. I. R. 1960 Alld. 436, in which it was observed that the provisions under Section 139-A (old) Cr. P. C. , corresponding to present Section 137, Cr. P. C. , is not mandatory but direc tory. To meet this argument the learned counsel for the petitioners has relied upon the commentary contained in A. I. R. Manual IV Edition, Volume XII, pages 754 and 755, in which a number of pronouncements including many pronouncements of the Allahabad High Court earlier as well as later have been cited and referred to in sup port of the author's commentary that the provisions of this section are mandatory. From the petitioners' side the case of Babu Singh v. Parmal 1972 A. W. R. 688, has been relied upon, it has been observed at page 690 in paragraph 6 that when the existence of a public right is denied, it is incumbent upon the Magistrate to follow the procedure laid down under Section 139-A, Cr. P. C. , and its non-compliance renders the order wholly illegal. Otherwise also when the Legislature has set two stages and the earliest stage is that on the basis of the evidence led by the opposite party in support of the denial, without any rebuttal from the petitioners' side, under Section 138 Cr. P. C. by evidence under that section, the Magistrate must con sider whether there is reliable evidence in support of the denial, non-observance of that provision is bound to defeat the valu able right conferred as to involve prejudice. With the aforesaid observations con cerning legal aspect 1 may now examine the order Annexure 4' to the petition. The Magistrate has stated that the second party in his objection had admitted the existence of path on the spot and his witness has also stated that public way exists infront of the house of second party. This naturally gives an impression that the Magistrate has proceeded on assumption that existence of path and public path is admitted and having started with such assumption the Magistrate further observed that he finds no evidence in support of denial of public path. It is a novel way of approaching the matter. Two witnesses had been examined. He should have referred to their evidence, and consi dered and discussed it as to then come to any conclusion. If the evidence was no contradictory, as is being urged by the op posite party, he could have used the same in support of his conclusion by way of his reasoning. I am deliberately avoiding the discussion of the evidence, which has been led, because it may prejudice any of the parties, when the matter is approached afresh by the Magistrate. I am, therefore, simply observing as to what has been urged concerning such evidence. Petitioners' sub mission is that the witness does not admit any obstruction on any public path and the opposite party also does not admit;t and it is urged that if the whole evidence of these two witnesses is perused, the submission may bear out. As to what will be conclu sions, after going through the statements of these two persons, is a matter which I feel the lower court may itself consider and examine and I will leave it to the lower court. It was argued that if the Judgment of the Sessions Judge in revision is considered, the present stand of opposite party's case may stand established. It is noteworthy that the Sessions Judge also has observed that the Magistrate 'did not make any dis cussion of the evidence on record' and so far as the Judgment of the Sessions Judge is concerned, it is based on consideration of entire evidence, namely the evidence led under the provisions of Section 138, Cr. P. C. as well, while the Magistrate was to determine on the basis of the evidence under Section 137. Cr. P. C. , at the first stage and to decide whether reliable evidence in sup port of denial exists as to stay the proceed ings pending decision in the civil court, or to hold that such evidence does not exist and then proceed under Section 138, Cr. P. C. In the result, the petition is allowed and dated July 6, 1981 of the Sessions judge, April 30, 1981 and March 12, 1981 of the Magistrate are set aside, and the Ma gistrate is directed to first give a finding in pursuance of enquiry under Section 137, Cr. P. C. considering the evidence that has been led in support of that denial and then proceed in accordance with law one way or the other, as the case may be. It is desir able that the lover court may expedite the disposal of the case. .