RAMKRIPAL SINGH Vs. SUPERINTENDENT, WAY AND WORKS, EIR

JUDGEMENT

(1.) This is a reference under Section 438, Criminal P. C, made by the learned Additional District Magistrate, Gaya, recommending that a Magistrate's order under Section 133, Criminal P. C, should be set aside.

(2.) the report of the Superintendent, Way and Works, East Indian Railway, (a State Railway) a proceeding was started against the manager and gumasta of the Tikari Raj for removal of a bund said to be an encroachment on the railway land near bridge No. 310 in village Karjara, mile 83l/3. The case of the railway company was that a bund had been extended right up to the railway embankment, thereby projecting into the railway land for 100 feet, and the effect was to lead to an accumulation of water below the embankment and prevent it flowing away naturally through a railway culvert lower down, and so to endanger the track. The Raj officials showed cause denying the existence of any public right in the land in question. The learned Magistrate then correctly proceeded to hold the enquiry required under Section 139A, Criminal P. C, and he held that there was no reliable evidence in support of the denial of the existence of a public right in the land in question. Having arrived at this conclusion, he proceeded to hold the enquiry under Section 137, Criminal P, C, and held that .here had been an encroachment on the public land, causing danger to the track. He accordingly made the order absolute against the Raj officials, the second party, and directed the removal of the encroachment. For his finding that the land was public land, he relied upon the explanation to Section 133, Criminal P. C, which says: A public place includes also property belonging to the State, camping- grounds and grounds left unoccupied (or sanitary or recreative purposes.

(3.) The learned District Magistrate considers that he was wrong in his interpretation of the explanation, and that despite this explanation land cannot be held to be a public place even though it is the property of the State, unless it is also shown that the public have an unrestricted right to use it. In the case of railway land, at least that part of it which is not the actual track, there is no right of user on the part of the public.