DATTA S NAIK Vs. BHIKAJI SITARAM KARKAR

JUDGEMENT

(1.) - The petitioner has filed a complaint stating that the respondent No. 2 had encroached upon a public road or access. On account of that complaint, proceedings under section 133 of Criminal Procedure Code were instituted and the learned Executive Magistrate, Mapusa, issued an Order under section 133 of Criminal Procedure Code. Thereafter, he held an inquiry and by his Judgment dated 30th January 1987, dismissed the application on the ground that the matter was not coming under the purview of section 133 of Criminal Procedure Code. Being aggrieved by this Order, the petitioner moved the Sessions Court, Panaji, in a Revision Application which was, ultimately dismissed by Judgment dated 10th August, 1988. While dismissing the Revision Application, the learned Sessions Judge observed that the petitioner himself has stated the claimed pathway was vacant and was not used by people, and therefore, trees ha d grown up on the said way. It is against this Judgment that the present Application was moved praying that powers under section 482 of Criminal Procedure Code be exercised by the Court.

(2.) MR. S. D. Lotlikar, the learned counsel appearing for the petitioner, invited my attention to the Judgment passed by the Executive Magistrate on 30th January, 1987. He contended that a bare reading of the said Judgment is sufficient to establish that the learned Magistrate did not at all follow the procedure laid down in section 137 of Criminal Procedure Code. After having made a conditional Order under section 133, it was incumbent upon the learned Magistrate to follow the procedure laid down in section 137, Cr. P. C, namely he ought to have called upon the respondent No. 2 to appear before him and to question him as to whether he was admitting or denying the existence of the public right of way. In case there was a denial, the learned Magistrate was bound to hold an enquiry and on basis of such enquiry, either stay the proceedings in order to enable the parties to get the matter of the existence of such right, duly determined by a Civil Court, or to proceed under section 138 of Criminal Procedure Code. The learned Magistrate, however, the learned counsel urged, did not at all question the first respondent as to whether or not he was denying the existence of the access, and straightaway, held an enquiry under section 138 Cr. P. C. , and thereafter, held that the matter was of civil nature. Consequently, he dismissed the application. While so doing, according to Mr. Lotlikar, the learned Magistrate has acted without jurisdiction. This was not appreciated by the learned Sessions Judge, and therefore, the petitioner was forced to approach this Court with a prayer of its intervention in the exercise of the powers under section 482 of Criminal Procedure Code. By dismissing the application, miscarriage of justice was caused, and therefore, this Court will be fully justified in interfering with the impugned Orders in the exercise of its inherent powers. Reliance was placed in support of the above submissions, in Pavithran Madukkani v. Konjukochu1, and in Sagar v. Chhayarani2.

(3.) MR. Dias, the learned counsel appearing for the respondent No. 1, however contended that there is no reason whatsoever for this Court to interfere with the impugned Order in exercise of its powers under section 482 of Criminal Procedure Code. He contended that the ends of justice do not require such intervention, since no substantial injustice was in any event caused to the petitioner. He can certainly approach the Civil Court to get the matter as to whether or not there existed an access duly determined. In addition, it is to be noted that the learned Magistrate has 1. 1982 Cr1. L. J. 103. 2. 1978 Cr. L. J. 1164. arrived at a finding that there was no access and that, in any event, the dispute was of civil nature and not to be dealt with under the provisions of section 133 of Criminal Procedure Code. The learned Public Prosecutor, Mr. Bhobe, adhered to the views expressed by Mr. Dias.