BAJRANGIAL SINGHANIA Vs. MANILAL SINGHANIA

JUDGEMENT

(1.) The petitioner who figured as opposite party in a proceeding u/ S. 133, Cr. P.C., has approached this Court assailing an order passed u/ S. 138, Cr. P.C. confirming the conditional order made u/ S. 133 directing his vacation from the Dharmasala in question by 22-7-1988. The facts as appear from the records are that the present petitioner is the brother's son of the opposite party No. 1 Manilal. His grandfather Mamehand constructed the Dharmasala. It is the petitioner's case that being driven out from the family home he has been occupying some rooms in, the Dharmasala since 1976 and has been residing there with his family. A petition was filed u/ S. 133, Cr. P.C. by the opposite party No. 1 alleging the petitioner to be creating nuisance in the Dharmasala, which is dedicated for the use of the general public, by picking up quarrel with the inmates and denying them the use of the facilities like toilets, water tap, stair-case, etc. by locking them. The learned Executive Magistrate passed a conditional order u/S. 133, Cr.P.C. calling upon the petitioner to remove such nuisance by vacating the Dharmasala by 22-7-1988 or to appear before him on that date and show cause as to why the order should not be made final. The petitioner appeared on 7-2-1989 and filed show cause asserting, while admitting that the building was a Dharmasala, that it was a joint family property run by the family management and that he has a right of residence there and he has been residing there since 1976. He also denied to be causing any public nuisance. On that date, the matter was posted for hearing to 28-2-1989. On 28-2-1989 the learned Magistrate adjourned the matter to 21-3-1989 for argument and for evidence of the first party (opposite party No. 1). On 23-4- 1989 he examined, cross-examined and discharged the petitioner and posted the matter to 23-5-1989. Ultimately on 21-8-1990 the order was passed to the following effect:-

(2.) Mr. Basu, the learned counsel appearing for the petitioner has urged, assailing the order:

(3.) As regards the submission raised by Mr. Basu that it was incumbent upon the learned Magistrate to have afforded opportunity to the petitioner to cross-examine the two witnesses produced by the opposite party No. 1 earlier on the basis of which the conditional order u/S. 133, Cr. P.C. was passed, there does not appear to be much force in it. No doubt the two witnesses had been examined by the learned Magistrate, namely, Satyanarayan Sharma and Gokul Chandra Mohanty, before the order u/ S. 133, Cr. P. C. was passed. But so far as the enquiry contemplated u/S. 137, Cr. P.C. is concerned, it is not a formal enquiry but is one which is intended only to enable the Magistrate to reach the conclusion whether the denial of the public right by the second party (petitioner) is genuine or a spurious one. Dealing with the scope of Ss. 137 and 138, Cr. P.C. 1 had the occasion to deal with the respective scope and nature of enquiry u/Ss. 137 and 138 Cr. P. C. in Criminal Revision No. 614 of 1986 (Palau Dehury v. Sarat Chandra Patra) decided on 20-9-1990 where I held as follows