BUDHA RAI Vs. EMPEROR

JUDGEMENT

(1.) This is an application in revision by three persons against an order passed by a Magistrate of First Class of Ballia under Section 133, Criminal P.C.

(2.) A complaint was filed in the learned Magistrate's Court alleging that the applicants had obstructed a public path which lay to the south of the complainant's house, and on 24-8-1945, the learned Magistrate issued a conditional order under Section 133, Criminal P.C., directing the applicants to remove the obstruction within one month or, if they object so to do, to show cause on 19-9-1945, against that order. Oh that date the applicants appeared before the learned Magistrate, and on being questioned by him under Section 189A of the Code they denied the existence of any public right in respect of the path in question. At the same time they filed a written statement in which they asserted, inter alia, that the public path lay to the north, and not to the south, of the complainant's house. A few days later they applied under Section 135 of the Code for the appointment of a jury to consider the propriety of the Magistrate's order. No action appears to have been taken on this application until 20-12-1945, when the learned Magistrate quite properly said that the question of the appointment of a jury was premature as the inquiry referred to in Section 139A had first to be held. This inquiry was not commenced until 14-3-1946, and seems not to have been completed until 23-5- 1946, when the learned Magistrate delivered an order the validity of which is the real issue in this case. It is apparent from this order that at the inquiry the learned Magistrate examined witnesses produced both by the complainant and by the applicants and was referred to the judgment in a civil suit between the same parties. The conclusion reached by the learned Magistrate was that the witnesses produced by the applicants were not worthy of belief, and that the path in question lying to the south of the complainant's house was a public way. He then directed that as the applicants had already applied for the appointment of a jury the case, should proceed in accordance with the provisions of Section 138 of the Code. On 10-6-1946, the jury was appointed and they were directed to record their finding within one month. They not only failed to do so but on 10 July asked to be allowed to resign. As a consequence of this the learned Magistrate On 12-7-1946, made an order under Section 141 of the Code directing the applicants to remove the obstruction to the way within two months.

(3.) Mr. K.B. Aathana in his very careful argument on behalf of the applicants has taken two objections to the procedure adopted by the learned Magistrate. He says, first, that the Magistrate ought, in holding the inquiry required by Section 139A, to have heard only the statements made by the witnesses for the applicants; that he erred in hearing witnesses produced by the complainant, indeed in permitting the applicants witnesses to be cross-examined and, secondly, that the fact that, as a result of his inquiry, the Magistrate recorded a finding that the path in question was a public right of way vitiated his whole order.