MANDANSING Vs. RAGHUNATHSINGH

JUDGEMENT

(1.) THIS is a reference by the learned Additional Sessions Judge, Bundi, recommending that the order of the Sab-Divisional Magistrate, Bundi, dated 28-1-1954, making his conditional order under Section 133 of the Criminal Procedure Code, absolute against the applicants Madansingh and Shrimati Kanwarbai be set aside.

(2.) PARTIES have not appeared. I have gone through the judgments of both the lower Courts as well as the record or the case. The learned Additional Sessions is perfectly justified in saying that the learned Sub-Divisional Magistrate, was wrong in proceeding under Section 137 of the Criminal Procedure Code before complying with the Provisions of Section 139 (A ). Under Section 139 (A), where an order is made under Section 133 for the purposes of preventing obtruction, nuisance or danger to the public in the use of any way the Magistrate, shall on the appearance before him of the person 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 under Section 137 or Section 138, inquire into the matter. In this case, no such question as is required by Section 139 (A) was put to the applicants, although they raised the point in their written statement that the land in dispute was not the public property but was the private property of the non-applicant. The learned Magistrate did not inquire into the matter as required by Section 139 (A ). It was, therefore, clearly a mistake on the part of the Magistrate to proceed under Section 137 without complying with the provisions of Section 139 (A ). It was held in the case of Uma Kanta v. Kalipada AIR 1933 Cal 790 (A):

(3.) THE reference is accepted, the order of the learned Sub-Divisional Magistrate dated the 28th January, 1954 making his conditional order under Section 133, Criminal P. C. absolute is set aside and he is directed to decide the case in accordance with law after first complying with the provisions of Section 139 (A ).