DHANO DEVI Vs. TULA RAM

JUDGEMENT

(1.) THE persons complained against have come up in revision before this Court, who succeeded before the Executive Magistrate, Samba, in securing the dismissal of an application under Section 133 of the Code of Criminal Procedure made by the complainant, but failed in a revision application in the court of the District Magistrate, Jammu, preferred by the complainant. The facts leading up to this revision petition may be briefly stated as follows: -

(2.) TULA Ram, the respondent before me made an application us 133 Cr. Pr. Code in the Court of Tehsildar Executive Magistrate, Samba, complaining therein that the petitioners had blocked his pathway, which according to him was a public thoroughfare, by raising a brick wall on it. The Executive Magistrate after recording the statement of the respondent and one more person examined as a witness, issued a conditional order on March 6, 1973 i.e., the day on which the application was moved, calling upon the petitioners to remove the obstruction, or appear before him on or before 29th March 1973, and show cause as to why the said order be not made absolute. Obviously, therefore this order was made by the Executive Magistrate under Sub -Section (1) of Section 133 of the Criminal Procedure Code. Pursuant to this order the petitioners filed their objections on March 29, 1973 denying the right of the respondent and claiming the property to be the private property of Taru Ram, the husband of the petitioner Mst. Dhano Devi. On March 29, 1973 the Executive Magistrate ordered the respondent to produce his evidence and April 2, 1973 was fixed as the date for recording the evidence of the respondent. On this date respondent examined as many as six persons as his witnesses, when the attention of the Magistrate seems to have been drawn towards the provisions of Section 139 -A of the Code of Criminal Procedure. The Executive Magistrate, there fore, called upon petitioners to produce their evidence, presumably for the purpose of showing prima facie that no such public right existed and fixed April 9, 1973 as the date for recording the petitioners evidence. Before April 9, 1973 the file came to be summoned by the District Magistrate in connection with a transfer application, and it was received back in the office of the Executive Magistrate on Dec: 15, 1973 after the transit, application was rejected. Thereafter the petitioners began examining their witness but for one reason or the other, the entire evidence of the petitioners could not be recorded till January 3, 1975. On January 3, 1975 however, the petitioners closed, their evidence except their own statements. Statement of Shiv Ram petitioner was recorded on Feb: 2, 1975 and the Magistrate agreed to conduct the spot inspection at the joint request made by counsel for the parties. Spot inspection was conducted on March 9, 1975 and the case was adjourned for final arguments. Counsel for the parties got several adjournments for arguments but counsel for the respondent could not argue the case and the Executive Magistrate heard the arguments of counsel for the petitioners who also could not conclude the same and sought further opportunity to produce some authorities on the point. Counsel for the petitioners could not produce any authority as a result of which the case was adjourned for final order to be pronounced on July 30, 1975. It appears that for several hearings final order could not be pronounced when on November 17, 1975 the file was again summoned by the Additional District Magistrate in a transfer application moved before him by the Respondent. The transfer application having once again failed, the file was received back in the office of the Executive Magistrate on January 5, 1976, when an order was passed by him summoning the parties, who appeared before him on Jan: 17, 1976. The case came to be finally decided by the Magistrate on February 16, 1976. The Executive Magistrate held that land on which right of way was being claimed was the private property of the petitioners and he therefore, dismissed the respondents application under Section 133 of the Code of Criminal Procedure. This order was challenged in revision by the respondents before the District Magistrate who by his, order which is impugned in this revision petition, himself over set the order of the Executive Magistrate, and remanded the case back to him for fresh disposal of the case, after making enquiry about the right of way of the public, irrespective of the fact of the ownership of the land over which such a right was claimed.

(3.) MR . Baldev Singh, the learned counsel for the petitioners has attacked the judgment of the learned Distt. Magistrate on two grounds; (1) that the District Magistrate had no jurisdiction to accept the revision petition himself and remand the case back to the Executive Magistrate for further enquiry; and (ii) that it was not necessary for the Executive Magistrate to give a clear finding with regard to the non -existence of the public right claimed by the respondents, and that finding recorded by the Executive Magistrate was a sufficient compliance with the provisions of Section 139 -A of the Code of Criminal Procedure. In my opinion none of the contentions raised by Mr. Baldev Singh deserve to be upheld.