JULU MIA Vs. GOLAM HUSSAIN

JUDGEMENT

(1.) IN this reference the question involved is whether a Magistrate before whom proceedings Under Section 133 of the Criminal Procedure Code had been started in respect of the obstruction of an alleged public pathway could ignore the provisions of Section 139A Cr. P.C. and proceed to decide the dispute between the parties straightaway Under Section 137(3) or 138 Cr. P.C.

(2.) THE first party herein applied to the Magistrate Under Section 133(1) Cr. P.C. stating that the second party had unlawfully obstructed a public pathway leading to a tank in the village. The Magistrate thereupon asked for a report from the Surveyor. On receipt of the said report, he drew up a conditional order Under Section 133 being satisfied that a public pathway existed and that the second party had obstructed the said pathway and he called upon the second party to remove the obstruction within 15 days or to show cause against the order being made absolute.

(3.) TWO objections have been raised against the order of the Magistrate. The first one was that he failed to question the second party whether he denied the existence of the public right. I see no serious point in that objection, as the second party had filed a written statement stating that he denied the public right. In the face of the written statement denying the public right, it was not necessary for the Magistrate to ask the second party formally whether he denied the right.