GANGA CHARAN GOALA Vs. CHANDRA KUMAR ROY

JUDGEMENT

(1.) ON 10 -6 -1966, Chandra Kumar Roy made an application before the Sub -Divisional Magistrate, Agartala, under Section 188 of the Criminal P. C., alleging that a narrow pathway running through the land of Ganga Goala (the petitioner herein) and Birendra Bejoy Majumder in the village of Subhash. nagar, also known as Jirama Daspara, had been under the use of village people, comprising of about 100 families, since 1946, for their normal agricultural and other pursuits ; that that pathway also leads to Development Block Office, the Primary Health Centre, the Co -operative Marketing Society and the Veterinary Hospital in the village, and that Ganga Goala had recently demolished the pathway much to the inconvenience of the residents of the village. It was also alleged that the petitioner had been using the pathway for proceeding to his agricultural lands and that since the day Ganga Goala had demolished it, he found it difficult to take his bullocks from his house to the lands and likewise was the situation with the other members of the village community. Chandra Kumar therefore prayed that necessary steps should be taken to undo the wrong committed by Ganga Goala, which meant in other words the restoration of the pathway.

(2.) THE Sub -Divisional Magistrate forwarded the application of Chandra Kumar to the Officer -in -Charge of the Kotwali police station for enquiry and report. On receipt of report from that Officer, he passed the conditional order on 18th of July 1967, under Section 138 of the Code, directing Ganga Goala to remove the obstruction and to show causa by 28th of July 1967. Simultaneously, the Sub -Divisional Magistrate asked the Officer -in -Charge of the Kotwali police station to 'open' the road temporarily for bringing paddy, under Section 142, Criminal P. C.'.

(3.) SHRI M. C. Chakraborty appearing for Ganga Goala, has raised two points in support of the claim that the entire proceedings taken by the Sub -divisional Magistrate stand vitiated. Firstly, it is urged that it was obligatory for the Sub -divisional Magistrate, as enjoined by Section 139A of the Code, to question Gangs Goala immediately the latter put in appearance before him as to whether he denied the public right claimed in respect of the pathway in dispute, and ' that since Ganga Goala had not been questioned on that point, the proceedings stand wholly vitiated. The second point raised is that the Officer -in -Charge of the Kotwali police station could be directed to open the pathway only, if Ganga Goala had been asked to do the needful by means of an injunction issued under Section 142 (1) of the Coda and he had failed to comply with the direction given. Shri R.L. Chakraborty, representing Chandra Kumar, has urged, on the other hand, that no irregularity or illegality had been committed by the Sub -divisional Magistrate, that the proceedings taken by him are in accord with the provisions of the law, and that at any rate the revision petition is barred by time,