RAM KISHORE Vs. STATE

JUDGEMENT

(1.) THIS rule in revision has been obtained in a case under Section 133 of the Criminal Procedure Code, pending before the Sub-Divisional Magistrate, Nahan. The facts of the case are, that the petitioners Ram Kishore and Jai Kishore claim ownership for khasra No. 942 which is an open piece of land situate in Chhota Chowk, within the town of Nahan. On one side of this land which is a Chabutra, there is a Haveli which at one stage belonged to Lala Bansi Lal who constructed a temple on the Chabutra for the use of the public. The three sides of Chabutra were left open for the public to traverse as they used to go to perform Puja etc. within the temple; on the occasion of Gugga Naumi, the members of the public assemble on this Chabutra and celebrate the festival for a period of 8 or 9 days and that is an annual function. Lala Bansi Lai fell in debts and the disputed property was purchased by the bank in public auction and the ancestors of the petitioners re-purchased the property from the bank. It appears the petitioners wanted to make some construction over the Chabutra and, therefore, they stacked some bricks and thereby obstructed the passages to the public from two sides, which gave rise to the present dispute. The S. H. O. , of the Police Station, Nahan, accordingly submitted his report dated 22nd April, 1971 to the Magistrate who considered it and issued a preliminary order under Section 133 (1), Criminal Procedure Code calling upon the petitioners either to remove the obstruction or if they objected so to do, to appear and show cause why the order should not be made absolute. The petitioners accordingly appeared before the Magistrate and when they were questioned as to whether they denied the existence of any public right over the Chabutra, they very much affirmed that they did deny it. The learned Magistrate then proceeded to enquire the matter under Section 139-A. After considering the evidence adduced by the petitioners, the Magistrate was of the opinion that there was no reliable evidence in support of such denial of public right. He, therefore, directed the petitioners to appear before him for further proceedings under Section 137.

(2.) AGAINST the order of the learned Magistrate, the petitioners came up in revision before the Sessions Judge, Nahan but they did not succeed. The learned Sessions Judge also considered that the Magistrate had even decided the case under Section 137 and, therefore, according to him no further proceedings were required to be taken up. In other words the learned Sessions Judge considered that the preliminary order had become absolute and an order to that effect could immediately be made by the Magistrate.

(3.) FEELING aggrieved by the order of the learned Sessions Judge, the petitioners have come up in a further revision before this Court. The learned Counsel for the petitioners contended in the foremost that neither the Chabutra could be considered a public place nor any unlawful obstruction has been made on it by the petitioner. It is undisputed that Lala Bansi Lai was the owner of the disputed Chabutra. When he constructed the temple which was open to the public there was a presumption that he conferred the temple property as public property. It is admitted on all hands that the public had a free access to the temple for performing Puja etc. The necessary inference is that a passage for going upto the temple was also there in the use of the public. This passage goes over the Chabutra which is open from three sides. If the petitioners obstructed two of the sides of the Chabutra, they had necessarily caused obstruction in the exercise of a public right over a public place. It is true that private property cannot be treated as public, merely because a section of the public have enjoyed permissible user over it. But from the character of the land an inference is to be derived that the owner had intended to make over the same to the public to exercise their right of passage upto the temple. The expression "public place" is not defined in the Criminal Procedure Code or in the Penal Code. In Queen v. Wellard, (1884) 14 QBD 63, Grove, J. , laid down that a public place "is a place where the public go, no matter whether they have a right to go or not" and this definition has been accepted by subsequent judicial decisions both in India and in England. A place in order to be public, must, therefore, be open to the public i. e. , a place to which the public have access by right, permission, usage or otherwise. Where a court finds that a temple has stood for a long time and worship is performed in it by the public, it is open to the court to infer that the building does not stand there merely by the leave or license of the owner of the site, but that the land itself is a dedicated property and the site is a consecrated land, and is no longer the private property of the original owner. (See Mini y. Ramgopal AIR 1935 All 891 ). Similarly in another case in re Muthuswami Iyer AIR 1937 Mad 286 : (38 Cri LJ 588) it was held that a place where the public are in habit of going is a public place. To a similar effect is the case State of Kerala v. Che-rian Secariah. It was also observed in this case that to constitute "public place" it is not necessary that the place should be a public property but if it is private property it must be proved that not only public could have access to it but it is a place to which, members of public in fact resort. Therefore, it is absolutely immaterial that Lala Bansi Lai or his successors-in-interest, namely, the petitioners are private owners of the Chabutra. When it is undisputed that the members of public have a right to pass over the Chabutra for worship in the temple and also hold festival of Gugga Naumi over it for 8 or 9 days every year, it is not difficult to hold that even though the Chabutra is a private property the public does exercise defined rights, over it and as such the Chabutra is a public place.