Malliackal Mohammed Master and Others vs Illikkal Beeran and Another

Kadar, J.—This criminal miscellaneous petition raising a question relating to the scope of inquiry u/s 137 of the Code of Criminal Procedure came up before the Division Bench pursuant to a reference made by one of us.

On a mass petition filed by the first Respondent and others before the Sub Divisional Magistrate, Perintalmanna, complaining of the obstruction by the Petitioners herein of a public paand 139A of the Old Code thway said to be running along a plot of land in Parappur village within the limits of Kottakkal Police Station, the Sub Divisional Magistrate instituted proceedings u/s 133 of the Code of Criminal Procedure and passed a conditional order on 12th January 1977, under Sub-section (1) of Section 133 of the Code of Criminal Procedure in accordance with the provisions thereunder and served the same on the Petitioners herein, who are counter-Petitioners in the proceedings initiated by the Sub Divisional Magistrate. The Petitioners appeared before the Sub Divisional Magistrate and denied the existence of any public right in respect of the pathway, the subject-matter of the proceedings. The case was then adjourned for the purpose of inquiry under Sub-section (1) of Section 137 of the Code of Criminal Procedure. There after an application was filed by the 1st Respondent herein praying that they should be permitted to partake in the inquiry proceedings u/s 137(1). The Petitioners then filed an application contending that the first Respondent should not be permitted to participate in the inquiry u/s 137(1), which is of an ex parte summary nature; and is purely a matter between the court and the person or persons against whom the conditional order was passed and that the Respondent has no right to be represented or to be heard at the stage of an inquiry u/s 137 of the Code of Criminal Procedure.

The Sub Divisional Magistrate after hearing both sides held that in order to test the reliability, it may be necessary for the Magistrate to hear the Petitioners at whose instance the conditional order was passed, that it may be necessary for the Magistrate to allow cross-examination of the witnesses called in support of the denial and there is nothing in the Code which rejects the powers of the Magistrate in deciding the reliability of the evidence that has been adduced.

It is this order that is challenged before us. Attacking this order the learned advocate appearing for the Petitioners contended that the scope of inquiry u/s 137 is very limited and in such an inquiry there is no scope for testing the reliability of the evidence; that this inquiry is a matter purely between the court and the party who denied the existence of the public right and therefore at this stage of inquiry the first Respondent at whose instance the proceeding was initiated has no right to be represented or to be heard or to cross-examine witnesses examined in support of the denial or to adduce any evidence to rebut the evidence adduced in support of the denial. In other words, the Counsel contended that the inquiry under Sub-section (1) of Section 137 is an ex parte summary inquiry.

The learned advocate appearing on behalf of the first Respondent, on the other hand, contended that the inquiry contemplated is a judicial process; that in the course of an inquiry u/s 137(1) the aggrieved party at whose instance the proceedings were initiated has a right to be heard at that stage itself and also a right to cross-examine the witnesses examined in support of the denial and also to adduce evidence to show that the denial is not bona fide and that the evidence adduced in support of the denial was not reliable. The Counsel also submitted that the principles of natural justice require that even is an inquiry of the nature contemplated u/s 137(1) the aggrieved party should be given an opportunity to be heard before the court stays the proceedings until the matter of the existence of the public right has been decided by a competent court.

The answer to the point in dispute can be found on a proper construction and a correct understanding of the salutary provisions of Section 137(1) of the Code of Criminal Procedure. Section 133 applies to certain public nuisances and provides summary remedy for their removal. Extraordinary powers are conferred under this Section on the District Magistrate, Sub Divisional Magistrate and other Executive Magistrates specially empowered by the State Government. But these powers are intended to be exercised only in urgent matters under exceptional and extraordinary circumstances. The Section should not be permitted to be used to wreak private vengeance and for settling a private dispute between two parties. The provision in the Section are to be sparingly used with care and caution. The Magistrate has therefore to be on his guard and it was in order to check a tendency on the part of certain litigants to make use of this Section as a substitute for enforcement of their private rights in a civil court and to prevent frivolous litigation in this respect that the legislature provided for two inquiries at two different stages, one being preliminary and the other final. No doubt a proceeding u/s 133 at its commencement is ex parte. It is on the basis of a report of a police officer or other informations or materials that a conditional order is passed u/s 133 by the Magistrate and at this stage the proceeding is ex parte. The report of the police officer or other information on which the Magistrate acted cannot be treated as evidence against the party against whom a conditional order was passed.

While a preliminary inquiry is enjoined u/s 137 of the Code of Criminal Procedure; a final inquiry is contemplated u/s 138 of the Code of Criminal Procedure. Thus two inquiries at two different stages are contemplated in a proceeding u/s 133 of the Code of Criminal Procedure. Under Sub-section (1) of Section 137, when a party against whom a conditional order has been passed appears before the Magistrate, the Magistrate shall question him as to whether he denies the existence of any public right in respect of the way, river, channel or place, and if he denies the Magistrate shall, before proceeding u/s 138, inquire into the matter. The purpose and the consequence of the inquiry contemplated under Sub-section (1) is stated in Sub-section (2) of Section 137. Under Sub-section (2), if in the inquiry contemplated under Sub-section (1) of Section 137, the Magistrate finds that there is any reliable evidence in support of the denial of the public right, he shall stay the proceedings until the matter of the existence of such right has been decided by a competent court. On the other hand, if he finds that there is no such evidence in support of the denial, he shall proceed as laid down in Section 138 of the Code of Criminal Procedure. The penalty for the failure of the person against whom a conditional order has been passed to deny the existence of an alleged public right or who, after having made such denial, failed to adduce evidence in support thereof, is provided for under Sub-section (3) of Section 137. The nature and extent of the inquiry u/s 137 is not specifically stated in this section; although the form and nature of inquiry u/s 138 is indicated under Sub-section (1) of the section. That Sub-section states that if the person against whom an order u/s 133 is made appears and shows cause against the order, the Magistrate shall take evidence in the matter as in a summons case. This gives an indication that the scope of the inquiry u/s 137 is only preliminary in nature, and also that there are two parties in a proceeding u/s 133, namely, the party at whose instance a conditional order was passed u/s 133 and the party against whom such an order was passed. The party at whose instance the proceedings were initiated and a conditional order was passed is already on record, and the opposite party comes on record only when he appears before the Magistrate in pursuance of the service of the conditional order on him. Therefore, there is no necessity of impleading the party at whose instance proceedings were initiated at the stage of an inquiry u/s 137 of the Code of Criminal Procedure as that part is already there on record.

The word ''inquiry'' has been defined in the Code u/s 2(g). The preliminary inquiry contemplated u/s 137 is summary in nature but it cannot be said to be an ex parte inquiry. This inquiry is intended to protect the rights of a party against whom a conditional order has been passed, or, in other words, against whom it is proposed to pass an order u/s 133 of the Code of Criminal Procedure. A proceeding u/s 133 is intended to protect the public as a whole and not to vindicate private rights or settle private disputes. There may also be cases where a party may put forward a false claim with a view to oust the jurisdiction of the Magistrate. In an inquiry u/s 137, the court should bear in mind that it is expected to be acting only in the interest of the public and as indicated earlier should be on its guard against any tendency to make use of the Section for enforcing or vindicating private rights.

We have already referred to the relevant provisions in Sections 137 and 138 of the Code of Criminal Procedure. Sub-section (1) of Section 137 commands the Magistrate in a case where the opposite party appears and denies the public right, to inquire into the matter before proceeding u/s 138 of the Code of Criminal Procedure. What has to be inquired into is the denial of the public right and in that inquiry what the Magistrate has to find out is only whether there is any reliable evidence in support of such denial. The purpose of the inquiry is therefore very limited. Although Section 137 does not prescribe or indicate the mode, the form or the nature of the inquiry, the scope of the inquiry thereunder has to be considered bearing in mind the purpose and the object of an inquiry of this nature before proceeding with a final inquiry u/s 138 of the Code of Criminal Procedure. As the inquiry is into the denial of a public right, the Magistrate has to call upon only the party who denied the public right, to produce evidence in support of the denial. It is not necessary that the party who denied the public right should establish or prove positively his claim nor is the Magistrate entitled to demand that the evidence he produce shall be sufficient to satisfy him that no public right existed. The section speaks only of evidence and not of proof. If, in the inquiry, the court finds that the claim is not a pretence or is one raised for the purpose of ousting the jurisdiction of a criminal court but it is raised bona fide, the court has to stay its hand. At this stage of inquiry, the party who alleged the obstruction and caused initiation of the proceedings u/s 133 is not entitled, as of right to come in and adduce evidence in support of the public right or cross-examine the witnesses examined by the opposite party in support of the denial. It is also not the duty of the Magistrate to take evidence on both sides and then weigh that evidence to come to a, conclusion whether there is any reliable evidence in support of the denial. But, a Magistrate inquiring into the matter u/s 137(1) of the Code of Criminal Procedure, if the particular facts and circumstances of a case so require, may in his discretion, for the purpose of satisfying whether the evidence adduced in support of the denial is reliable or not, allow the cross-examination of the witnesses examined in support of the denial by the party at whose instance action was taken. The Magistrate can also in his discretion recall or re-examine any witness for this purpose. There is nothing in Section 137 taking away the basic and fundamental right of a court to seek assistance in the interest of justice, if it is found necessary, from whatever source, for the limited purpose of finding whether there is any reliable evidence in support of the denial. The special and extraordinary powers conferred on the Magistrate u/s 311 of the Code of Criminal Procedure are not in any way fettered by this section, but the discretion vested in the Magistrate in the matter of an inquiry u/s 137 has to be exercised very cautiously depending upon the facts and circumstances of the case and the nature of the evidence adduced in support of the denial. There can be no doubt that the inquiry under this Section is summary in nature unlike an inquiry u/s 138 and the purpose of the inquiry is very limited. The discretionary power given to a court u/s 311 of the Code of Criminal Procedure is very wide; and therefore this power given under this section should be exercised with caution and circumspection and should be invoked only for the ends of justice and exercised judicially for valid reasons. An inquiry u/s 137 should not be converted into a regular and elaborate inquiry. These conclusions we have reached on the point in dispute find considerable support in the decisions reported in Kishorimohan v. Krishnabihari AIR 1931 Calcutta 527, Mt. Chunni and Another Vs. Emperor, , Budha Rai v. Emperor AIR 1948 All. 2115 , Kartika Ram Vs. Jagannath Misra and Others, .

The decisions on the scope of inquiry u/s 137 of the Code of Criminal Procedure among the various High Courts are conflicting. The High Courts of Calcutta, Allahabad and Orissa have taken the view that in an inquiry u/s 139A of the Code of 1898, hereinafter referred to as the Old Code, corresponding to Section 137 of the Code of 1973, hereinafter referred to as the New Code, the witnesses examined by the party who has denied a public right can be allowed to be cross-examined by the party at whose instance proceeding u/s 133 has been initiated. But the High Court of Patna and Punjab have taken the view that the inquiry u/s 139A is an ex parte summary inquiry and that at that inquiry the party at whose instance the proceeding was taken has no right to come in and adduce evidence in support of the public right or against the denial. The Counsel for the Petitioner relied on the decisions of this Court in Veeran v. Kuruvilla 1959 KLT 1300, Abraham v. State 1972 KLT 211, and Sudhakaran v. George 1973 KLT 327 , and also Darsan Ram Vs. The State and Others, , Rukmini Raman Singh and Another Vs. Herdeo Mandal, , Jaswant Singh and Another Vs. Jagir Singh and Others, , in support of his contentions.

In Darsan Ram Vs. The State and Others, it was held by a Division Bench that the inquiry envisaged in Section 139A. is in the nature of an ex parte summary enquiry and what the Magistrate is to see is whether there is a prima facie reliable evidence in support of the denial and not that the nonexistence of the public right should be affirmatively proved. In Darsan Ram''s case the enquiry u/s 139A of the Old Code corresponding to Section 137 of the New Code was not held by the Magistrate and the Magistrate allowed both parties to adduce evidence and then passed an order. It would appear that the Magistrate proceeded simultaneously under Sections 137 and 139A of the Old Code in that case.

This decision was followed by a Single Judge of the same High Court in Rukmini Raman Singh and Another Vs. Herdeo Mandal, . In this case also the enquiry contemplated u/s 139A was not held by the Magistrate and he proceeded with the enquiry u/s 137 after taking evidence on both sides.

In Jaswant Singh and Another Vs. Jagir Singh and Others, , a learned Single Judge of that Court, following an earlier decision of that Court, held that an enquiry envisaged u/s 139A is in the nature of an ex parte summary enquiry. That was also a case where there, was no enquiry as contemplated u/s 139A of the Old Code held by the Magistrate.

In Veeran v. Kuruvilla 1959 KLT 1300 , Anna Ghandy, J. was of the view that the scope of an enquiry u/s 139A is limited; that it is solely for the purpose of finding out whether there is any necessity for a detailed enquiry u/s 137 and as such there is no scope for weighing the evidence to find if the alleged right exists or does not exist. It was the order of the executive I Class Magistrate, Palghat who rejected an application for impleading on the ground that the enquiry envisaged u/s 139A was ex parte summary enquiry that was challenged before this High Court in revision. The Magistrate had placed reliance on Darsan Ram Vs. The State and Others, in coming to the said conclusion. We have gone through the decision in Veeran v. Kuruvilla 1959 KLT 1300 carefully, but apart from referring to Darsan Ram Vs. The State and Others, in the statement of facts containing in paragraph 2 as one on which reliance was placed by the Magistrate in support of his conclusion, there is nothing in the decision to show or indicate that Darsan Ram Vs. The State and Others, was considered in all its aspects and relied on in this case in support of the position that the enquiry envisaged u/s 139A is in the nature of an ex parte summary enquiry. The party at whose instance a proceeding u/s 133 is initiated and a conditional order is passed is already on the party array and he will be called upon to adduce evidence in support of the conditional order passed at the second stage of inquiry u/s 138 of the New Code and therefore the necessity of his impleadment does not arise at any stage of the inquiry. With great respect, we are unable to agree with the view that the inquiry u/s 139A of the Old Code (corresponding to Section 137 of the New Code) is in the nature of an ex parte summary enquiry and that the party at whose instance the proceeding u/s 133 was commenced has to get himself impleaded in the inquiry. Two other decisions of this Court which had occasion to consider the scope of inquiry u/s 139A of the Old Code are Abraham v. State 1972 KLT 211 and Sudhakaran v. George 1973 KLT 327, both rendered by Single Judges of this Court. But in these two cases the question whether the inquiry u/s 139A was in the nature of an ex parte summary enquiry was not considered. In neither of these two cases nor in Veeran''s case 1959 KLT 1300 the question whether in the course of an enquiry u/s 139A (Section 137 of the New Code) for the purpose of satisfying whether the evidence adduced in support of the denial was reliable, the Magistrate in his discretion could allow or permit the witnesses examined in support of the denial to be cross-examined by the party at whose instance the proceeding u/s 133 was initiated, never came up for consideration. Nor was this question discussed or considered in Darsan Ram Vs. The State and Others, and Rukmini Raman Singh and Another Vs. Herdeo Mandal, , by the Patna High Court or in Jaswant Singh and Another Vs. Jagir Singh and Others, by the Punjab High Court.

In Kartika Ram Vs. Jagannath Misra and Others, , Narasimham, C.J. was not inclined wholly to endorse the observations in Darsan Ram''s case AIR 1959 Patna 81 to the effect that an enquiry u/s 139A would be in the nature of an ex parte summary enquiry and held that an enquiry u/s 139A is not necessarily an ex parte proceeding because the party on whose application the proceeding u/s 133 was initiated would always be in attendance. Here also the question whether the Magistrate for the limited purpose of satisfying that the evidence adduced in support of the denial is reliable could permit to cross-examine the witnesses examined in support of the denial did not come up for consideration.

But this question was directly in issue in Kishorimohan Pramanik Vs. Krishnabihari Basak, a Division Bench of the Calcutta High Court construing the provisions in Section 139A of the Old Code (Section 137 of the New Code) held that in an enquiry u/s 139A of the Old Code, the evidence adduced in support of the denial should be legal evidence and the Magistrate is to find whether there is reliable evidence in support of the denial of the existence of the public right; and that in order that the Magistrate may satisfy himself whether there is reliable evidence in support of the denial, he may allow cross-examination of the witnesses examined by the party in support of such denial. It was also held that the enquiry being of a summary character, it is not intended that the party at whose instance the proceeding was initiated should be required to adduce evidence to contradict the case sought to be made out by the party against whom the provisional order was passed.

In Mt. Chunni and Another Vs. Emperor, Mulla J., while dealing with the scope of enquiry u/s 139A of the Old Code, relying on Muhammad Khalil Vs. Emperor, , L. Janardan Sarup Vs. Emperor, and AIR 1937 676 (Lahore) held that all that the Magistrate is required to do under this Section is to hold an enquiry merely to satisfy himself that there is or is not, some prima facie evidence in support of the denial of the public right by the person on whom the conditional order is served and that in dealing with that part of enquiry, it is no doubt open to him to allow the witnesses, if any, produced by the person denying the public right to be cross-examined; but the Magistrate cannot allow the opposite party at whose instance the proceeding was initiated to produce definite evidence to the contrary and then proceed to take evidence in order to decide finally whether the alleged public right does or does not exist.

In Budha Rai and Others Vs. Emperor, Mootham J., relying on Mt. Chunni and Another Vs. Emperor, and following Kishorimohan v. Krishnabihari AIR 1958 C.A.L. 461 held that nothing is laid down in the Code of Criminal Procedure as to the form which the inquiry u/s 139A should take and no restrictions are imposed on the discretion of the Magistrate as to how he should conduct the inquiry except such as can be inferred from the purpose of which the inquiry is intended; that the duty of the Magistrate is to determine whether there is some reliable evidence which he has no reason to think is false, in support of the denial and for that purpose he may allow the witnesses called in support of the denial to be cross-examined. We are in respectful agreement with the views expressed in this regard in the decisions of the Calcutta and the Allahabad High Courts referred to above.

There was also some argument as to what constitutes reliable evidence u/s 137(2), The Counsel for the Petitioner relying on a decision of the Calcutta High Court in Atul Krishna Sahoo and Another Vs. The State, and also Abraham v. State 1972 KLT 211 contended that the reliable evidence under this section is the evidence of a reliable person and that what the Magistrate has to satisfy himself is that the evidence produced is not false and that such reliable evidence must not be legal evidence. With great respect we are unable to agree with the observations that reliable evidence referred to in Section 137(2) "must not be legal evidence"; although we are in respectful agreement with the other observations referred to.

The result is that there are no proper or adequate grounds for quashing the order impugned in exercise of the powers of this Court u/s 482 of the Code of Criminal Procedure and this petition is dismissed. The Sub Divisional Magistrate will dispose of the case in accordance with law and in the light of this order as expeditiously as possible.