RAJARAM SINGH Vs. KESHARI RAI

JUDGEMENT

(1.) A conditional order under Section 133, Criminal P.C., was issued against the petitioner calling upon him to show cause why he should not remove an alleged obstruction on a public lane. The petitioner appeared and showed cause in which he claimed that the land on which the obstruction stood was not a public lane but was private property. He also asked for the appointment of a jury. The Magistrate recorded that the cause shown was not satisfactory and proceeded to appoint a jury. A date was fixed for the jury to meet and another date was fixed on which they were directed to submit their report. After a number of extensions of time on the application of one or other of the jurors a report was eventually submitted by four of them. It appears from the ordersheet that only four of the jurors had attended the meeting. Rightly holding that the report of the four jurors could not be accepted, the Magistrate then proceeded to take evidence from both the parties and eventually passed an order making absolute the conditional order Under Section 133.

(2.) The order is challenged on two grounds. In the first place it is contended that the Magistrate has not complied with the mandatory provisions of Section 139A. That section requires that when a person on whom a conditional notice under Section 133 has been served appears and denies the existence of the alleged public way, the Magistrate shall, before deciding the matter or appointing a jury, "enquire into the matter." Sub-section (2) then provides that if the Magistrate in such enquiry finds that there is any evidence in support of the denial, he shall stay the proceedings until the existence of the public right has been decided by a competent Court. Now there are a number of cases in this Court in which it has been pointed out that a Magistrate is not entitled to usurp the jurisdiction of the civil Court. He must enquire from the person on whom the notice is served whether he denies the existence of the public right and then he must decide whether there is any reliable evidence in support of the denial. If he fails to do so and proceeds to make the order absolute, he acts without jurisdiction. In the present case, however, the Magistrate in finding that the cause shown was not satisfactory and complying with the petitioner's request that a jury should be appointed, appears to me to have substantially complied with the provisions of the law. Had the petitioner at the time of showing cause tendered any evidence to the Magistrate in support of his denial or asked the Magistrate to fix a date for hearing such evidence, the Magistrate would have been bound to accede to the request of the petitioner; but the petitioner neither tendered any evidence in support of the cause which he showed against the conditional order nor asked the Magistrate to give him an opportunity of producing such evidence.

(3.) It is nevertheless contended that the Magistrate was bound to "enquire into the matter" as required by Section 139A. These words, in my opinion, merely J mean that he is to hear any evidence that the petitioner wants him to hear before proceeding further. If there is no evidence, there is nothing for the Magistrate to enquire into. The first objection, therefore, is overruled.