KARTIKA RAM Vs. JAGANNATH MISRA

JUDGEMENT

(1.) THIS is a revision by the second party against a final order under Section 133 Criminal Procedure Code passed by the S. D. O., Cuttack Sadar directing him to remove a Kutcha construction said to have been made by him on a public rasta in Cuttack town which is causing nuisance to the public. Proceedings under Section 133 Criminal Procedure Code were initiated on 16.7.1958 and usual notice was served on the petitioner. He entered appearance on 11 -10 -58 and denied the public right of way over the plot in question and urged that an enquiry under Section 139 -A Criminal Procedure Code should be held. The Magistrate thereupon called upon both parties to file their documents, heard them in full and after innumerable adjournments spread over several years at last disposed of the matter by a final order dated 1.2.1962. He has come to a clear finding as to whether there was any reliable evidence in support of the denial of the public right of way, as required by Sub -Section (2) of Section 139 -A Criminal Procedure Code. The order -sheet also does not show that on any of these innumerable dates the Magistrate was aware of the fundamental difference between the enquiry under Section 139 -A Criminal Procedure Code on the one hand and the enquiry under Section 137 Criminal Procedure Code on the other. Apparently he mixed up the enquiries under both the sections and passed one composite order.

(2.) THE order of the Magistrate cannot be supported. It is the right of a party against whom a preliminary notice under Section 133 Criminal Procedure Code is issued to show that further proceedings should not be taken if he can adduce reliable evidence in support of his denial of the public right over the path in question and the Magistrate must come to a finding on this point before he can proceed with the enquiry under Section 137, Criminal Procedure Code.

(3.) MR . Misra also relied on a recent Division Bench decision reported in Darsan Ram v. State, AIR 1959 Patna 81 where it was held that an enquiry under Section 139 -A Criminal Procedure Code was of an ex parte summary nature and urged that as in this case both parties were fully heard it must be presumed that the petitioner was aware that the enquiry was held under Section 137 and not under Section 139 -A.