MANOHAR SINGH Vs. EMPEROR

JUDGEMENT

(1.) The applicant applies in revision of an order under Section 140, Criminal P.C., directing him to remove a portion of his house on plot 43 across which there is held to be a public right of way. I have had considerable difficulty in ascertaining what are the actual facts. It appears that upon the defendant filing a written statement a Naib Tahsildar was called on to make measurements and report. I had proceeded thus far with the commencement of this judgment on the case as stated by counsel when I referred for another point to the written statement and from that it appears that the Naib Tahsildar had already made his measurements and made a report. This fact is sufficient to indicate the difficulty I have had in arriving at the facts to which I am asked to apply the law. I will, therefore, proceed to state what is the case of the applicant for it is for him to show that there is proper ground for interference. The case, then as stated on behalf of the applicant, is that upon receipt of a notice issued under Section 133 the applicant appeared to show cause; that he showed that cause by filing a written statement; that in that written statement there was a denial that there was any public right of way over the plot in question; that the Magistrate did not, as he was required by law to do, Section 139-A (2), enquire into the matter and determine whether there was "any reliable evidence" in support of the applicant's denial; that if he had done so he would have felt compelled to stay the proceedings until the matter had been decided by a competent civil Court; that he had no power to proceed direct to the holding of the formal inquiry under Section 137. It is said that this irregularity vitiates the final order.

(2.) In the first place counsel is not able to satisfy me that there was in fact no such inquiry as is mentioned in Section 139-A (1), and on that ground alone I should have to dismiss the revision. Secondly, counsel has not been able to state what materials his client had ready to which the Magistrate could direct any preliminary inquiry. But on the other hand I have nothing to satisfy me that the Magistrate considered the possibility of holding or the obligation to hold any such inquiry, and I think it is desirable to state what in my view is the procedure that should be followed. It is matter of common knowledge that prior to the amendment of Ch. 10 by the Act, 1893, the Courts had engrafted on the Code a law which may be generally stated as having the effect of casting on the Magistrate the duty of determining whether a claim to title made by the opposite party was bona fide or mala fide, and directing the Magistrate, if he found the claim to be bona fide, to refer the parties to the civil Court. This graft on the Criminal Procedure Code was no doubt dictated by a feeling that it was undesirable where there was really some reliable evidence of title in the opposite party to allow the criminal Courts to order the destruction of property.

(3.) As it seems to me the legislature desired to clarify the law on this point by the enactment of Section 139-A. It will be noticed, however, that the legislature has very carefully avoided any reference whatever to any consideration of the bona fides of the denial of the opposite party except so far as there may be definite reliable evidence of that bona fides. The Court has not been directed, on the opposite party showing cause, to consider directly the question of his bona fides at all, but to consider whether there is any reliable evidence in support of his denial. The merit of this is obvious. A person may make a denial absolutely bona fide, but he may have no reliable evidence to put forward in support of his denial. He may have in fact no evidence to put forward at all. A denial need not necessarily be mala fide because a person cannot produce evidence to support his denial. He may have a perfectly honest belief in his own denial. Bona fides was therefore a bad test to apply, and the legislature has substituted a much better one. On the applicant showing cause the Magistrate must "inquire" into the matter and determine whether there is "any reliable evidence." This "inquiry" is clearly something to be kept quite distinct from the formal inquiry which may have to be held later under Section 137 if the Magistrate finds that there is no prima facie reliable evidence in support of the denial of the opposite party.