Mandansing and Another vs Raghunathsingh

Sharma, J.—This is a reference by the learned Additional Sessions Judge, Bundi, recommending that the order of the Sab-Divisional Magistrate, Bundi, dated 28-1-1954, making his conditional order u/s 133 of the Criminal Procedure Code, absolute against the applicants Madansingh and Shrimati Kanwarbai be set aside.

Parties have not appeared. I have gone through the judgments of both the lower Courts as well as the record or the case. The learned Additional Sessions is perfectly justified in saying that the learned Sub-Divisional Magistrate, was wrong in proceeding u/s 137 of the Criminal Procedure Code before complying with the Provisions of Section 139(A). u/s 139(A), where an order is made u/s 133 for the purposes of preventing obtruction, nuisance or danger to the public in the use of any way the Magistrate, shall on the appearance before him of the person against whom, the order was made 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 does so, the Magistrate, shall u/s 137 or Section 138, inquire into the matter.

In this case, no such question as is required by Section 139 (A) was put to the applicants, although they raised the point in their written statement that the land in dispute was not the public property but was the private property of the non-applicant. The learned Magistrate did not inquire into the matter as required by Section 139 (A). It was, therefore, clearly a mistake on the part of the Magistrate to proceed u/s 137 without complying with the provisions of Section 139(A). It was held in the case of Uma Kanta Chatterjee Vs. Kalipada Chowdhury and Another,

Where in proceedings u/s 133, Criminal P. C., the opposite party denies, the existence of a public right in respect of the land in question, it is the duty of the Magistrate to hold an inquiry u/s 139-A with a view to ascertaining whether there is any reliable evidence in support or the denial on the part of the opposite party, and to record a clear finding on the point before proceeding further. He cannot make his original order absolute u/s 137 without recording any finding u/s 139-A.

In the case of Mt. Ram Kali Vs. Kripa Shanker and Others also, it was held that:

Where a Magistrate passes an order u/s 137 without holding any proceedings u/s 139-A, but based on his own observation and documents filed, his order is ultra vires.

A similar view was taken by the Lahore High Court in the case of Nanumal v. Emperor AIR 1939 Lah 452 (C). This Court also in the case of Jai Kishan v. The State RLW 1054 SC 175(D) held that a Magistrate cannot proceed u/s 137 without first complying with the provisions of Section 139 (A). Thus there are abundant authorities in support of the view taken by the learned Additional Sessions Judge.

The reference is accepted, the order of the learned Sub-Divisional Magistrate dated the 28th January, 1954 making his conditional order u/s 133, Criminal P. C. absolute is set aside and he is directed to decide the case in accordance with law after first complying with the provisions of Section 139 (A).