Harisadhan Chaudhuri and Another vs Teknarain Singh

JAMES, J.—This is a reference by the Sessions Judge of Patna recommending revision of an order of the Sub-divisional Magistrate of Patna made u/s 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 u/s 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.

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.

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 u/s 139-A, Criminal P.C., fixing 24th 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 u/s 137(2), Criminal P.C.

The learned Sessions Judge has pointed out that when the Magistrate found there was reliable evidence in support of the denial of the existence of a public pathway, he should have stayed proceedings u/s 139-A until the matter of such right had been decided by a competent civil Court; but the form which he has adopted for this order has the same effect as that of an order under. Section 139-A (2) and there is no necessity for interference on that account. The learned Sessions Judge has also remarked that the finding of the learned Magistrate that the existence of a public right has not been proved is not supported by the evidence which he recorded. The learned Sessions Judge considers that the fact that people had been using this path for the last 2� years was sufficient in itself to warrant the Magistrate''s finding that the existence of a public right had been proved.

This view is apparently based on a misunderstanding of the decision of this Court in Janki Ram and Others Vs. Saukhi Panjara and Another, ; and the learned Sessions Judge erred in supposing that the Magistrate usurped the functions of the civil Court when he declined to enforce a right which he found not to exist. If the person who alleges that a public pathway has been obstructed is unable to show that a public pathway exists the Magistrate is certainly neither required nor entitled to act as if it had been found that public pathway did exist; and in the absence of evidence of actual dedication the person defending the case u/s 133 has merely to adduce reliable evidence to show that the use of the path by the public has not been sufficiently long to establish a prescriptive right.

The fact that this pathway may have been used for 2� years would not warrant the Magistrate enforcing its use as a public path against the wishes of the owner, who is perfectly entitled to close it if he pleases. I find no reason for interfering with the order of the Sub-divisional Magistrate in this case and the reference is discharged.