PALAU DEHURY Vs. SARAT CHANDRA PATRA

JUDGEMENT

(1.) THE Petitioners who were members of the second party in a proceeding under Section 133, Code of Criminal Procedure have approached this Court in revision against an, order passed by the Sessions Judge reversing the decision of the Magistrate and remanding the matter for fresh disposal in accordance with law. The facts in brief are that an application was filed by the opposite parties alleging the Petitioners to have obstructed a village path used by the villagers by constructing huts thereon with a view to prevent the villagers from using the path. A conditional order having been passed under Section 133, Code of Criminal Procedure, the Petitioners appeared before the Magistrate and showed cause, inter alia, denying the encroachment of any public right on the disputed land or the existence of any public right thereon. Admittedly, the opposite parties have also instituted a title suit bearing No. 5/82 before the Subordinate Judge, Dhenkanal in respect of the same land. The Petitioners filed an application on 16 -12 -1983 before the Magistrate for staying the 133, Code of Criminal Procedure proceeding since the cause of action of the 133, Code of Criminal Procedure application and the subject -matter of the title suit were the same and that the findings of the Civil Court would dispose of the question which hid arisen in the 133, Code of Criminal Procedure proceeding. Both the parties also filed documents before the Court on 14 -2 -1984. The Petitioners filed, along with the other documents, a draft record -of -rights in respect of the land showing no public right to be existing thereon. The learned Magistrate passed orders on 23 -4 -1984 staying further proceedings of the 133, Code of Criminal Procedure case observing that since the matter was before the Civil Court which had issued notice for maintenance of status qua of the land in question, it was the proper forum to decide the right, title and interest of the parties. In revision, the learned Sessions Judge set aside the order of the Magistrate for the reason that the latter had failed to comply with the mandatory provisions of Section 137(1), Code of Criminal Procedure, inasmuch, as he did not hold the enquiry on denial of existence of any public right.

(2.) THE second part of Chapter X of the Code of Criminal Procedure dealing with public nuisances contemplates, after a conditional order has been passed under Section 133 and the second party has appeared in pursuance of the notice, two procedures to be adopted by the Magistrate depending upon the nature of defences taken by the noticee. The first is as provided for under Section 137 where if the second party appears and denies existence of the public right, the Magistrate is to enquire into the matter and if he finds that there is any reliable evidence to support such denial, he shall stay the proceeding until the matter has been decided by a competent Court. If however no such reliable evidence is found in support of the denial, he shall proceed to hold the enquiry provided for under Section 138. The second is where the second party appears and shows cause against the conditional order but does not deny existence of the public right the Magistrate is not required to hold any preliminary enquiry as provided under Section 137, but is to hold the enquiry as contemplated under Section 138. Sections 137 and 138 contemplate two different enquires by the Magistrate. The enquiry under Section 138 is by way of a summary procedure whereas for enquiry under Section 137 no specific procedure has been laid down and the only requirement therein is that the Magistrate should see whether there is any reliable evidence in Support of denial of the public right. The reliable evidence as is referred to in Sub -section (2) of Section 137 is not reliable proof to be adduced before the Magistrate but only such evidence which the Magistrate thinks reliable. In an enquiry under Section 137 the Magistrate is not expected to insist upon proof by the second party of his assertion of denial but only production of such materials or evidence to show prima facie that the assertion is not spurious. It is for such reason that while holding of enquiry under Section 137 is mandatory once the public right is denied, that the enquiry is not to satisfy the rigours of a formal enquiry adopting summary procedure, and is made only for the purpose of satisfaction, obviously objective in nature, of the Magistrate that the claim made by the second party is not a merely cooked up one and that he has some reliable basis to support his claim. The Magistrate is not required to give any conclusive finding on such evidence in the enquiry under Section 137.

(3.) IT is also not correct to hold that the learned Magistrate did not hold any enquiry under Section 137. The enquiry under Section 137 is not of the same nature as under Section 138 and can be said to have been implicitly held where the Magistrate perused the documents of the parties, heard the learned Counsel and came to the conclusion of staying the proceeding under Section 137(2). Whether any enquiry has been held or not would depend upon the facts and circumstances of each case and in suitable cases it is possible to infer that an enquiry has actually been held though not so recorded in as many words.