BANSIDHAR MARWARI Vs. PWD

JUDGEMENT

(1.) This is a reference by the Sessions Judge of Manbhum-Singhbhum under Section 438, Criminal P.C., recommeding that an order made by a Magistrate under Section 133, Criminal P.C., and thereafter made absolute under Section 137 (3) of the Code should be set; aside. The defect to which the learned Sessions Judge invites attention is that after issuing the notice under Section 138 the Magistrate did not on the date fixed for hearing question the petitioner under Section 139A as to whether he denied the existence of any public right in respect of the way alleged to have been obstructed.

(2.) Undoubtedly, it is the duty of the Magistrate to put this question to the person against whom the order under Section 133 was made and as pointed out in Emperor V/s. Raghunandan Saran Das A.I.R. 1936 Pat. 639, it is very easy to overlook the requirements of Section 139A which is placed not between Sections 136 and 187 but after Section 139. In that case and in another case of this Court in Munni Lal V/s. Public of Bhagalpur A.I.R. 1941 Pat. 38, the orders of the Magistrates were set aside and directions given to re-hear the proceedings from the stage where the second party should have been asked under Section 189A whether he denied the existence of the public right; but in the ease before me it is an admitted fact that the way alleged to have been encroached on is a public way; it is a P.W.D. road and this fact is not in any controversy between the parties.

(3.) Therefore, if the Magistrate had remembered to put the question contemplated by Sec. 139A the answer must necessarily have been that that party did not deny the existence of a public right of way. That being so the procedure of the Magistrate in taking up forthwith the enquiry under Section 137 as to whether the public way had been encroached on or not was an irregularity not affecting the merits.