B L TRIKHA Vs. FRANK PAUL AND OTHERS

JUDGEMENT

(1.) On 18th June, 1965, Shri Frank Paul and thirty five others moved an application under Section 133 of the Code of Criminal Procedure for removal of obstruction from the way which had been used by them and others for having access to the colony known as Prem Nagar in Ferozepore Cantonment. The allegation was that there was a way connecting the said colony with the railway road and that way had been used by the public for the last seventy years. The railways wanted to construct a swimming pool and thereby obstructed the passage of the public through the said way. The learned Magistrate issued notice to railways requiring them to cause the removal of the said obstruction within two days or to appear before him on 21st June, 1965 and to show cause as to why the said order be not made absolute. On 28th June, 1965, the railways put in their reply denying the right of the public to use the said way and stated that it was a private road meant for the exclusive use of the railway employees. One of the petitioners, Shri Frank Paul, put it an application for withdrawing from the case. The case was, however, adjourned to 13th July, 1965 with the following order.

(2.) There is no manner of doubt that the procedure observed by the learned Magistrate is contrary to the mandatory provisions of Section 139-A of the Code of Criminal Procedure. As soon as the railways denied the existence of the public right in respect of the way in dispute, it was incumbent upon the Magistrate to enquire into the matter before proceeding under Section 137 or Section 138. The counsel appearing on behalf of the residents of Prem Nagar contends that the learned Magistrate has proceeded in accordance with the provisions of Section 139-A. His argument is that since the railways did not produce proper evidence as directed by the learned Magistrate on 28.6.1965, the Magistrate was justified in not staying the proceedings. The contention of the counsel is, however, not correct. As is clear from the order dated 28th June, 1965, the learned Magistrate directed both parties to produce their evidence on the next date. This is not a proper compliance with the provisions of Section 139-A. The requirements of this section are that in order to enquire into the denial of the existence of public right the Magistrate is required to give an opportunity to the party making such denial to produce its evidence. The enquiry as contemplated by the section is only for the purpose of finding out if there any reliable evidence in support of such denial. Obviously, the learned Magistrate did not proceed under Section 139-A when he passed the order on 28th June, 1965. There was no question of production of evidence by both parties at that stage. When the railways brought the provisions of Section 139-A of the Code of Criminal Procedure to the notice of the learned Magistrate, it was only then that he stated that opportunity had been granted to them for the purpose of leading evidence in support of their denial. I am, therefore, of the view that the recommendation made by the learned Additional Sessions Judge, Ferozepore, is quite in order. As held in Chuni Lal Mansa Ram and others v. Ratti Ram Shiv Narain and others, 1965 AIR(P&H) 340, the provisions of Section 139-A, Code of Criminal Procedure, are mandatory. Non-compliance with this provision cannot be cured by recourse to Section 537 of the Code. The learned counsel for the respondents, however, argues that when the railways would be allowed to lead evidence in support of their denial of the public right, he should be permitted to take part in the enquiry and adduce evidence in rebuttal. He also asserted that a right of cross-examination should be granted to him with regard to the witnesses, which the railways might produce in that connection. Mr. Partap Singh, learned counsel for the railways, on the other hand, argues that the enquiry under Section 139-A of the Code of Criminal Procedure is of an ex-parte character and the opposite party has no right either of cross examining the witnesses produced by the railways or to lead evidence in rebuttal. The point for determination, therefore, is as to what is the exact scope of the enquiry to be held under Section 139-A.

(3.) It is not laid down in Section 139-A as to the form in which the enquiry should be held. The Magistrate holding the enquiry has to regulate his own procedure. This view of mine finds supports from Budha Rai and others v. Emperor, 1948 AIR(All) 115. Mootham, J. has made the following observations in this case -