IN RE NARSINGH NARAIN Vs. RAMESHWAR SINGH

JUDGEMENT

(1.) UNDER the provisions of Section 438, Criminal P.C., the Additional Sessions Judge of Patna has recommended that the order upon Narsingh Narain Singh and Sheoratan Singh under Section 133, Criminal P.C. be set aside as made without jurisdiction. Substantially the basis of the recommendation is that the Magistrate has failed to proceed in accordance with the provisions of Section 139-A. The persons mentioned, when they appeared, denied the existence of any public right, that is to say, that plot 1004 was ever a public pathway. Thereupon it was incumbent upon the Magistrate before proceeding under Section 137 or. Section 138 to inquire into the matter. What the Magistrate did was to visit the spot and to examine witnesses for the first party who had put the law in motion and then to examine the remaining witnesses twelve days later and then an amin who had been deputed to examine the alleged encroachment after comparison with the survey map and record-of-rights. Without any further proceedings he made the order absolute. It is, of course, clear that he ought to have found whether there was any reliable evidence in support of the denial of these petitioners that the public right existed and thereupon either to have stayed the proceedings altogether so that the existence of the public right alleged might be decided by a competent civil Court or on finding that there was no such evidence to have proceeded as laid down in Section 137 or 138 as the case might require. It has been frequently pointed out in this Court (it was not necessary for the learned Sessions Judge to deal with the rulings of the other High Courts on the subject) that an order under Section 137 passed without making the inquiry enjoined under Section 139-A (1) cannot stand.

(2.) THE order under reference must be set aside and the Magistrate, treating his previous inquiry as one under Section 139- A (1), must now proceed to record the finding required by Section 189-A (2) and dispose of the matter in accordance with such finding. It is pointed out by the learned advocate appearing on behalf of the petitioners that no order was passed in respect of the encroachments which were admittedly made by other persons than the two petitioners in respect of whom proceedings under Section 133 were drawn up and who appeared and stated that they had no objection to the removal of the obstructions. It is not enough to record such willingness. A substantive order for the removal of the obstructions ought to have been passed in their case also. THE reference is accepted, the order under reference is set aside, and the Magistrate will proceed to determine the matter in accordance with the directions given above.