KISHORILAL Vs. STATE

JUDGEMENT

(1.) These are two references under Section 438 Cr. P. C. which have been registered as Nos. 90 and 91 of 1959, by the Additional District Magistrate of Jalaun with the recommendation that final orders passed, by the Tahsildar Magistrate, Kal-pi, in two separate proceedings under Section 133 Cr. P. C. against Kishori Lal and Ram Singh, respectively, be set aside and the Magistrate directed to proceed afresh according to law.

(2.) The District Engineer (P.W.D.), Orai, submitted reports for taking proceedings under Section 133 Cr. P. C. against Kishori Lal and Ram Singh for having made encroachments on a public way. These reports were taken cognizance of by the Sub-Divisional Magistrate, Kalpi, and in both he ordered that a notice be issued to the opposite party requiring him to remove the encroachment within 15 days or to appear before the Tahsildar-Magistrate Second Class, Kalpi, on the date specified in the order. Kishori Lal put in his appearance on 1-10-1958. and filed a written statement denying the existence of a public right of way over land on which the alleged constructions stood. His case, in brief, is that the alleged constructions were old and did not stand on any part of P.W.D. road and that his claim had been upheld by the civil court in a regular suit instituted by him. The Tahsildar-Magistrate fixed 8-10-1958 for there-cording of evidence of P.W.D. and 13-10-1958 for the evidence of the opposite party, namely, Kishori Lal. Evidence was recorded on those dates and arguments heard on 17-10-58. The notice was made absolute under order dated 29-10-58 of the Tahsildar-Magistrate,

(3.) In the other reference, Ram Singh put in his appearance before the Tahsildar-Magistrate on 16-10-1958 and filed his objection wherein he denied the existence of a public right of way alleging that the land on which the constructions stood did not belong to P.W.D. He also made a request for the appointment of a Jury to decide matters in controversy. 23-10-1958 was fixed for argument to decide if Ram Singh was entitled to 'Jury trial'. He failed to appear in the Court of the Tahsildar-Magistrate on the date fixed with the result that not only was the request for appointment of Jury rejected, but final ex parte orders were passed in the proceeding.