DARSAN RAM Vs. STATE

JUDGEMENT

(1.) This is a reference by the Additional Judicial Commissioner, Ranchi, under Section 438 of the Code of Criminal Procedure for quashing the orders of the Magistrate dated 22-9-1955 and 20-12-1955, substantially on the ground that they were made in violation of the provisions of Section 139A of the Code.

(2.) The facts have been correctly stated by the learned Additional Judicial Commissioner in his reference, and they may be briefly recapitulated here. On the report of the police choukidar alleging obstruction by the petitioner, Darsan Ram, on a public path forming part of plot No. 1476 in village Khatanga within the Bero police station, the Sub-Inspector of Police moved the Sub-Divisional Magistrate for action against the petitioner and also Doman Ram and Raman Ram. On 14-3-1955 the Sub-Divisional Magistrate passed an order, which is prima facie vague, directing the local police to remove the encroachment from the path or to show cause against the order on 5-4-1955. The petitioner, Darsan Ram, appeared on that date and filed a petition denying the existence of any public path as alleged. Thereupon, the Sub-Divisional Magistrate called upon the first party, that is, the State, to appear on 23-4-1955 to adduce evidence on the point that the land in question is a public road. He also directed the petitioner as well as Doman Ram and Raman Ram to appear on that date. On the next date, an enquiry by a Magistrate, Mr. A. N. Dey, was directed. Mr. Dey submitted his report, and the Sub-Divisional Magistrate considered that a detailed measurement of the land was necessary. Eventually, a pleader commissioner was appointed for the purpose. After the submission of the report by the pleader commissioner the Magistrate thought that a proceeding under Section 133 of the Code should be started. He accordingly recorded the fallowing order: "It is better that this matter be decided in a proceeding under Section 133, Criminal P. C. Issue notice to the parties to remove the obstruction from the road by 3-8-55." Thereupon, Darsan Ram filed a fresh petition denying existence of public right on the disputed land. The other two members of the second party, namely, Doman Ram and Raman Ram, filed jointly another petition in support of the existence of such a right and alleging encroachment by Darsan Ram on this road. Thereafter, the case was transferred to Mr. A. M. Khair on 6-8-1955 for disposal. This Magistrate fixed 22-9-1955 for "preliminary hearing under Section 139A, Criminal P. C." Both the parties were summoned to appear on that date. On 22-9-1955 Mr. Khair recorded the following order;

(3.) It will appear from the above that the Magistrate before whom the first report was made as well as the Magistrate to whom the case was transferred for disposal adopted a procedure unknown to law. They appear to have a confused idea about the nature of the proceedings under Section 133 of the Code. When any unlawful obstruction or nuisance is alleged to have been made, inter alia, on public way, river or channel which is or may be lawfully used by the public, and a District, Magistrate, or a Sub-Divisional Magistrate, or a Magistrate of the first class considers that such obstruction or nuisance should be removed, he should initiate a proceeding under Section 133 of the Code and pass a conditional order requiring the person causing such obstruction or nuisance to remove, such obstruction or nuisance within a time to be fixed in the order, or if he objects so to do, to appear before the Magistrate and move to have the order set aside or modified. This order shall be served on the person concerned in the manner laid down in Section 134. The person against whom such order is made shall either perform, within the time specified in the order, the act directed thereby; or appear in accordance with such order and either show cause against the same, or apply to the Magistrate by whom it was made to appoint a jury to try whether the same is reasonable and proper. (See Section 135). Section 136 lays down the consequence of non-performance of the act or failure to show cause. It lays down that if the persons against whom the order is made fails to perform the act or fails to appear or show cause or apply for the appointment of a jury, as required by Section 135, the order shall be made absolute, and he may further be liable to the penalty prescribed in that behalf in Section 188 of the Indian Penal Code. Section 137 prescribes the procedure to be followed when the person against whom the order is made appears and shows causes. It lays down that if such person appears and shows cause against the order, the Magistrate shall take evidence in the matter as in a summons-case. If the Magistrate is satisfied that the order is not reasonable and proper, no further proceedings shall be taken in the case. If the Magistrate is not so satisfied, the order shall be made absolute. Section 138 lays down the procedure where such a person claims the appointment of a jury to try whether the order is reasonable and proper. Section 139 prescribes the procedure to be adopted by the Magistrate when a finding is submitted by the jury appointed under Section 138. Section 139A lays down a special procedure with regard to the obstruction, nuisance or danger to the public in the use of anyway, river, channel or place. The important question which arises in this case is whether the provisions of this section were strictly followed by the Magistrate. Sub-section (1) provides that where an order is made under Section 133 for the purpose of preventing obstruction, nuisance or danger to the public in the use of any way, river, channel or place, the Magistrate shall, on the appearance before him of the persons against whom the order was made, question him as to whether he denies the existence of any public right in respect of the way, river, channel or place, and if he does so, the Magistrate shall, before proceeding under Section 137 or Section 138, inquire into the matter. Sub-section (2) provides that if in such inquiry the Magistrate finds that there is any reliable evidence in support of such denial, he shall stay the proceedings until the matter of the existence of such right has been decided by a competent civil court; and, if he finds that there is no such evidence, he shall proceed as laid down in Section 137 or Section 138, as the case may require. In a case falling under Section 139A it is imperative for the Magistrate, first, to hold an enquiry as laid down therein before he proceeds under Section 137 or Section 138, as the case may be. It will appear that the procedure laid down in Section 139A requires, first, that the party against whom a provisional order has been made, shall appear before the Magistrate and deny the existence of the public right in question; secondly, that he shall produce some reliable evidence; and, thirdly, that such evidence shall be legal evidence and shall support the denial. It has been repeatedly laid down by authorities that if these three conditions are satisfied, then the Magistrate's jurisdiction to continue the proceeding ceases. He has no jurisdiction to weigh the evidence and decide on which side the balance leans. The criterion is that the Magistrate should find evidence supporting the denial, which he can pronounce reliable. If there is such an evidence, it is sufficient to oust his jurisdiction to continue the proceedings further. The enquiry envisaged in Section 139A is in the nature of an ex parte summary enquiry, and what the Magistrate is to see is whether there is a prima facie reliable evidence in support of the denial and not that the non-existence of the public right should be affirmatively proved. It is, therefore, not the duty of the Magistrate to take evidence of both the sides and then to judge if the party against whom the order has been made has succeeded in establishing the non-existence of the public right. It is evident from the above that this procedure was not followed. The Sub-divisional Magistrate passed some vague orders, and it is difficult to determine what he purported to do. Any way, ultimately he decided to start a proceeding under Section 133, and thereafter transferred the case to Mr. A. M. Khair, and the latter did realise that in view of the denial of the existence of public right by Darsan Ram a preliminary enquiry under Section 139A was necessary. But he also fell into an error, and the order that he passed on 22-9-1955 was clearly wrong. He seems to proceed simultaneously under Sections 137 and 139A. As laid down in Sub-section (2) of Section 139A, he could not proceed simultaneously under these two sections. He could proceed under Section 137 only when the enquiry under Section 139A did not disclose any reliable evidence in support of the denial. When there was such reliable evidence the question of proceeding under Section 137 did not arise, because in that case it was incumbent upon the Magistrate to stay the proceedings until decision of the impugned right by a competent Civil Court. The entire procedure adopted by the Magistrate was illegal, and therefore the order of date 22-9-1955 is insupportable in law. Apart from this, the Sub-Divisional Magistrate required the state also to appear and adduce evidence on the question whether the disputed land was a public road. This was also wholly wrong. It was not necessary to make the state a party at that stage. He further called upon the opposite party Doman Ram and Raman Ram to appear and adduce evidence in support of their case, namely, the existence of the public right. The Magistrate to whom the case was subsequently transferred held local inspection in presence of the parties and examined and cross-examined some witnesses, and he fixed 8-12-1955 for the expression of his opinion about Section 139A of the Code. It is not clear what he meant by this order. It appears that on 20-12-1955 he abruptly passed an order to the effect that there was no reliable evidence in support of the denial of the public right. As stated above, it was not the duty of the Magistrate to require all the parties to the proceeding to adduce evidence in support of their respective versions and reach a conclusion after considering the evidence pros and cons. The enquiry being of a summary character, it is not intended that the parties who complained of the obstruction should be asked to adduce evidence to contradict the evidence of denial of the public right. The law requires that he should take evidence only in support of the denial of the right and base his conclusion on that evidence independent of what evidence the other party may nave in possession to prove the contrary. When the object of the enquiry is to ascertain if there was reliable evidence in support of the denial, it is obvious that the only party who should be called upon to adduce evidence in support of such denial is the party denying the existence of the public right. The persons complaining of the obstruction or nuisance are out of the picture at this stage. If the evidence adduced by the party against whom the order is made is legal and reliable, there is an end of the matter, and the Magistrate cannot but stay his hands and refer the parties to the Civil Court. Therefore, the Magistrate misdirected himself in allowing both the parties to adduce evidence and then reach his conclusion. Thus, the order of the Magistrate was wholly wrong, being contrary to the provisions of Section 139A and cannot be maintained, and when this order is illegal, I think, it can be revised by this court.