RAM RAJ AND ORS. Vs. STATE AND ORS.

JUDGEMENT

(1.) AN application under Section 133 Code of Criminal Procedure was filed by one Bhoosi asserting that the opposite parties had encroached upon the public pathway situated in village Mokhalpur by putting a Marha on the way and as in the same was causing obstruction, therefore, it was liable to be removed. After having received the application, the Sub -Divisional Magistrate Jaunpur, directed the station officer concerned to enquire into the matter and submit a report on the same. Pursuant to the above order of the Sub -Divisional Magistrate, The Station Officer submitted a report on 18 - 6 -1973 that the applicants had encroached upon a certain portion of the public pathway. The Magistrate thereafter, issued a conditional order under sub -section (1) of Section 133 Code of Criminal Procedure calling upon the applicants either to show cause against the proposed removal of the construction or to remove the same. In pursuance of the conditional order issued by the Sub -Divisional Magistrate, the applicants filed a written statement on 12 -8 -1975 and denied that they had encroached upon any public pathway or that they had made any construction as alleged by Bhoosi. It appears that after the written statement was filed on 12 -8 -1975, the applicants on 29 -11 -1975 also produced one Sohan Ram Yadav son of Sirodhar, Pradhan of village Mokhalpur, to support their case that they had not obstructed the passage or made any construction. The case was, thereafter, adjourned on a number of dates for one reason or the other. It was ultimately taken up on 13 -4 -1976. On that date it appears that the applicants were not present in the Court. Magistrate taking evidence of Bhoosi made the conditional order issued by him absolute. Aggrieved by this order, the present revision has been filed in this Court.

(2.) LEARNED Counsel for the applicants submitted that as the applicants had filed a written statement against the order passed under sub -section (1) of Section 133 Code of Criminal Procedure and showed cause, the Magistrate was obliged to take evidence as in a summons case and to decide the application filed by Bhoosi thereafter. It was contended in this connection that as Bhoosi, admittedly, did not give any evidence on 13 -4 -1976, the Sub -Divisional Magistrate had no jurisdiction to direct the applicants to remove the constructions in pursuance of the conditional order issued under Section 133(1) Code of Criminal Procedure. The submission made by the learned Counsel for the applicants appears to be well founded. Section 138 Code of Criminal Procedure lays down that if a person against whom an order under Section 133 is made appears and shows cause against the order, the Magistrate shall take evidence in the matter as in a summons case. In view of the fact that the procedure provided for a summons case was applicable to the proceeding in the instant case, the proper thing which the Sub -Divisional Magistrate was required to do was to have complied with the provisions of Chapter XX of the Code of Criminal Procedure and to have recorded the evidence of the complainant, viz., Bhoosi. As it was not done, there was no material before the Sub -Divisional Magistrate on the basis of which he could confirm the conditional order issued under Section 133(1) Code of Criminal Procedure. It appears that the Sub -Divisional Magistrate was under a wrong impression that as the applicants did not appear on 13 -4 -1976 to support the denial of the obstruction of public passage taken in the written statement he could confirm the conditional order issued under Section 133(1) Code of Criminal Procedure without taking evidence from the side of the complainant. Once a written statement has been filed by a person who is called upon in pursuance of a notice under Section 133(1) Code of Criminal Procedure to show cause, the provisions of Section 138 Code of Criminal Procedure become applicable. In such an eventuality, the Sub -Divisional Magistrate should take evidence of the complainant and only when he is satisfied on the basis of the evidence of the complainant filed thereafter or already existing on the record, lie could confirm the conditional order passed under Section 133(1) Code of Criminal Procedure. In the instant case, as the procedure was not followed, the impugned order dated 13 -4 -1976 is liable to be set aside.