MUNSHI Vs. TARA CHAND

JUDGEMENT

(1.) This revision has been filed by Munshi and others against or der passed by the learned IV Additional Sessions Judge, Muzaffarnagar setting aside the order passed by the learned Magistrate in proceedings under Section 133 Cr. P. C. in which he finally held that the public way in question obstructed was not a public way. The case was, therefore, remanded for fresh proceedings under Section 138 Cr. P. C. and then giving final order according to law. What happened in this case was that on October 18, 1978,tara Chand Opposite Party No. 1 moved an application that the appli cants of this revision, had made certain cons tructions in the public way in question as s result of which the flow of the water of their house was obstructed and their right of way was also obstructed. After this application was moved a Police report was called for and after looking into that Police report a preliminary order under Section 133 Cr. P. C. was prssed by the learned Magis trate on October 28, 1978. A notice of that order was served on the applicants and in pursuance of that notice they appeared be fore the learned Magistrate. The learned Magistrate proceeded under Section 133 Cr. P. C. After being satisfied that there was no satisfactory evidence of the denial of the public way the learned Magistrate proceed ed under Section 138 Cr. P. C. After record ing further evidence under Section 138 Cr. P. C. the learned Magistrate came to the conclusion that the opposite parties had fail ed to establish the existence of the public way. He, therefore, dismissed the applica tion under Section 133 Cr. P. C. and dropped the proceedings. Being dissatisfied with that order Tara Chand, Opposite Party No. 1 went in revision before the leaned Sessions Judge which was heard by the learned IV Additional Sessions Judge, Muzaffarnagar. The learned Sessions Judge set aside the order passed by the learned Magistrate dropping the pro ceedings and remanded the case to the court of the learned Magistrate for fresh proceed ings under Section 138 Cr. P. C. The view of the learned Sessions Judge was that once the learned Magistrate had come to the con clusion in proceedings under Section 137 Cr P. C. that he was not satisfied with the denial of the public way it was not open to him to enter reappraisal of evidence and to come to the conclusion that the public way did not exist. The order passed by the learned Sessions Judge, has now been challenged in (revision by Munshi and others who were opposite parties in the proceedings before the learned Magistrate. I have heard the learned counsel for the applicants as well as the learned counsel for the opposite parties. Section 133 Cr. P. C. , deals with the obstruction or nuisance in public way. Under this section if a Magis trate on receiving the report of the Police Officer or other information and on taking such evidence, if any. as he thinks fit, con siders that any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel which is or may be lawfully used by the public; (since we are not concerned with other clauses of this section J need not quote them.) in such a case the Magistrate can pass a conditional order requiring the person causing such obstruction or nuisance. Thus, satisfied he will pass a preliminary or der under Section 133 Cr. P. C. The Magis trate w required to proceed under Section 137 Cr. P. C. and he will call upon the par ties causing such obstruction or nuisance in the public way and question him about the existence of any public right and after ques tioning him if the Magistrate is satisfied that there is any reliable evidence in support of such denial, he shall stay the proceedings until the matter of the existence of such/right has been decided by a competent court; and, if he finds that there is no such evidence of denial, he shall proceed under Section 138 Cr. P. C. Sub-section (3) of Section 137 Cr. P. C. provides that a person, who has, on being questioned by the Magis trate under sub-section (1), failed to deny the existence of a public right of the nature therein referred to, 'or who, having made such denial, has failed to adduce reliable evidence in support thereof, shall not in the subsequent proceedings be permitted to make any such denial. Subsequent to the passing of the order under sub-section (3) of Section 137 Cr. P. C. the Magistrate will pro ceed under Section 138 Cr. P. C. and require the person against whom an order under Section 133 Cr. P. C. is made to show cause against the order and record evidence which may be given by that party. If, however, the Ma gistrate is satisfied that the order either as originally made or subject to such modifi cation as he considers necessary, is reason able and proper, the order shall be made absolute without modification or, as the case may be, with such modification; but, if the Magistrate is not so satisfied, no further proceedings shall be taken in the case. Looking into the scheme of the section it ap pears to me that the intention of the Legis lature was to give finality to the order un der Section 137 (3) Cr. P. C. and such deci sion taken under Section 137 (3) Cr. P. C. could not be challenged again in proceed ings under Section 138 Cr. P. C. The words in sub-section (3) Section 137 Cr. P. C. are that "such person shall not in the subsequent proceedings be permitted to make any such denial. " This certainly shuts out that party to take up such denial again in proceedings under Section 138 Cr. P. C. It has, however, been contended by the learned counsel for the applicants that it may debar the party from making such denial under Section 138 Cr. P. C. but the Magistrate himself is not debarred from holding that the right of pub lic way did not exist. From Scheme of things in these sections it does not appear that it was open to the learned Magistrate to re-enter into this question as, he will be relegated back to the position mentioned in sub-clause (2) of Section 137 Cr. P. C. and he will have to stay 1jhe proceedings until the matter of the existence of suoh right has been decided by a competent court. The provisions of the old Section 139-A, Cr. P. C. are analogous to the provision of Section 137 Cr. P. C. 1973. In Basant Lal and an other v. Hira Lal and others 1970 A. W. R. 620, it was held that the words, "shall not in the subse quent proceedings be permitted to make any such denial," provided that if a person against whom the conditional order is di rected either does not deny the existence of the public right: or if he denies it but fails to adduce reliable evidence in support of the denial he will not be entitled or permitted to deny the existence of the public right in subsequent proceedings tinder Section 137. The intention of the Legislature was that the question of the existence of the public right shall not be decided by the Magistrate in the summary proceedings under Cihapter X Cr. P. C. If the public right is not denied, he must proceed on the basis that it exists. If the reliable evidence is produced in sup port of the denial and public right is denied the must stay the proceedings till the matter is decided by a competent civil court but if in support of such denial reliable evidence is not produced must again proceed on the basis that the public right exists. Once the Magistrate has recorded an order under Section 139-A (a) that the person denying the existence of the public right has failed to adduce reliable evidence the question can not be reopened in subsequent proceedings under Section 137 Cr. P. C. 1898. In this view of the matter I do not think that there is any force in this revision. The learned Magistrate shall proceed to decide the case in accordance with the direction given by the learned Sessions Judge. The learned Magistrate will be free to come to any conclusion in respect of the objections raised by the other party but by accepting the fact of existence of public way. The revision is therefore, dismissed. .