RUKMINI RAMAN SINGH Vs. HERDEO MANDAL

JUDGEMENT

(1.) This case is typical of the cases which generally come up to this court under Chapter X of the Criminal Procedure Code (hereinafter referred to as the Code) owing to the neglect of the Magistracy to observe the procedure prescribed by Section 139A of the Code. The section requires that when a person on whom conditional notice under Section 133 of the Code has been served appears in response to that notice and denies the existence of any public right in a way, river, channel or place alleged to have been obstructed, the Magistrate shall enquire into the matter and if in course of such enquiry, the Magistrate finds that there is any reliable evidence in support of the denial, he is bound to stay the proceeding until the existence of the right has been decided by a competent civil court. If, on the other hand, he finds that there is no such reliable evidence he is required to proceed in the manner prescribed by Section 137 or Section 138 of the Code.

(2.) In the present case, the opposite party filed an application before the Subdivisional Magistrate, complaining obstruction by cutting the Rashta appearing between survey plots Nos. 5313 and 5321 in the north and 5312 and 5323 in the south, at village Riga, police station Sitamarhi, and amalgamating it into the adjoining lands, which caused much inconvenience to the people in general in going to the main road of the village. The application was filed by the learned Magistrate for non-prosecution on the 9th April, 1963. However, it was restored and the petitioners appeared and complained that the application filed by the opposite party was vague and inaccurate with respect to the plots alleged to have been obstructed. The Subdivisional Magistrate, by his order dated the 14th August, 1963, directed the office to draw up a proceeding under Section 133 of the Code against petitioner No. 1, and it was transferred to the court of Shree V.N. Shukla for favour of disposal. The petitioners filed their show cause petition on the 10th October, 1963. The learned Magistrate perused the show cause petition filed by the petitioners and held on the 13th January, 1964, that the survey plot number was not fixed and hence the court could not proceed. Consequently, the opposite party was given an opportunity to furnish the correct plot number failing which it was ordered that the proceeding would be dropped. The opposite party supplied specification of the disputed Rashta, on the basis of which the proceeding was amended and show cause notice was ordered to be issued to the petitioners. The petitioners filed show cause on the 10th July, 1964, denying the existence of any public right on the alleged ridge. The petitioners claimed that the public was not interested in the said ridge. The learned Magistrate heard the parties on the 3rd August 1964. Thereafter the opposite party filed a petition dated 17th August, 1964. The learned Magistrate also heard the lawyers for the parties on the petition filed by the first party. Ultimately on the 15th March, 1965, the learned Magistrate passed the following order:

(3.) It is apparent from the above that in the present case, the petitioners (second party) appeared to show cause against the conditional order, but the Magistrate made no enquiry from them as to whether they denied the existence of the public right or not, nor did the Magistrate make any enquiry as to whether there was any evidence in support of such denial. It is apparent, however, that the Magistrate has taken evidence with regard to the existence of the public right and that on consideration of that evidence, he has been able to decide that the right does exist. It is manifest that the Magistrate did not direct his mind at all to ascertaining whether there is any evidence in support of the denial of the existence of the public right and took upon himself to decide the question whether a public right existed or not. In this way, he usurped the functions of a civil court and deprived the party concerned of the right to have the matter decided by that Court at a preliminary stage.