HARISADHAN CHAUDHURI Vs. TEKNARAIN SINGH

JUDGEMENT

(1.) This is a reference by the Sessions Judge of Patna recommending revision of an order of the Sub-divisional Magistrate of Patna made under Section 137, Criminal P.C. On the Patna-Khagaul road there are two plots of land, bearing survey Nos. 256 and 257, which were alleged to have been used by the public for a pathway for a long time. Plot No. 256 has been acquired by the Patna Administration Committee and plot No. 257 is the property of Teknarain Singh. Proceedings were instituted under Section 133, Criminal P.C., in respect of obstruction to the use of these plots; but we are here only concerned with the proceeding in respect of plot No. 257. Teknarain Singh in showing cause denied that his plot No. 257 was a public way; and he further denied that anybody had attempted to use it in such a way.

(2.) He said that people of Yarpur had been passing through the plot No. 256 which belongs to the Patna Administration Committee, and that the trouble had arisen from the fact that the Committee was now preventing people from passing through that land. Teknarain Singh thus did not deny that there was a public right of way through plot No. 256 and the Sub-divisional Magistrate remarked on this that the provisions of Section 139-A, Criminal P.C., did not apply to the present case, since the only question was whether any obstruction had been made on plot No. 256.

(3.) A date was fixed for the further inquiry; and when the case was taken up by the Sub-divisional Magistrate's successor, this Magistrate at once observed the mistake which had been made by his predecessor in supposing that the fact that Teknarain Singh did not deny that there was a public right of way over plot No. 256 rendered it unnecessary to follow the provisions of Section 139-A with regard to plot No. 257. The Sub-divisional Magistrate accordingly directed that evidence would be taken under Section 139-A, Criminal P.C., fixing 24 October for hearing the evidence, on which date each party examined his witnesses. The petitioners witnesses alleged that plot No. 257 had been used as a public pathway for some years, which was denied on behalf of the defendant, though one of his witnesses said that the plot had been used as a path for the last 2 years. The Magistrate after hearing this evidence came to the conclusion that the existence of a public pathway across plot No. 257 had not been established, and directed that the proceedings should be dropped under Section 137(2), Criminal P.C.