Muni Lal Agarwala vs Public of Bhagalpur

Agarwala, J.—This case is typical of the cases which are continually coming up to this Court under Chap. 10, Criminal P.C., owing to the neglect of the magistracy to observe the procedure prescribed by Section 139A. That section requires that when a person on whom additional notice u/s 133 has been served appears in response to that notice and denies the existence of any public right in the way, river, channel or place alleged to have been obstructed, the Magistrate shall inquire into this matter and if in the course of such inquiry the Magistrate finds that there is any reliable evidence in support of the denial he is bound to stay the proceedings until the existence of the right has been decided by a competent civil Court. If, on the other hand, he finds that there is no such reliable evidence he is required to proceed in the manner provided by Section 137 or Section 138.

Now, in the present case the second party appeared to show cause against the conditional order but the Magistrate made no inquiry from him as to whether he denied the existence of the public right or not; nor did the Magistrate make any inquiry as to whether there was any evidence in support of such denial.

It is argued however that the Magistrate has taken evidence with regard to the existence of the public right and that on a consideration of that evidence he has been able to decide that the right does exist. Consequently, it is contended, that the order should not be set aside merely because the Magistrate did not comply with the provisions of Section 139A. That however is to overlook the whole object of the provisions of that section. Those provisions are clearly designed to ensure that where there is reliable evidence in support of the denial of the existence of the public right the Magistrate shall have no jurisdiction to pronounce on the cogency of that evidence but refer the matter to a civil Court.

When the Magistrate does not direct his mind at all to ascertaining whether there is any evidence |in support of the denial of the existence of the public right and takes upon himself to decide the question whether a public right exists or not he usurps the function of a civil Court and deprives the party concerned of the right to have the matter decided by that Court.

The order of the Magistrate dated 11th March 1940, is set aside and he is directed to rehear the proceedings as from the stage where the second party should have been asked u/s 139A(1) whether he denied the existence of the public right. In the rehearing of this case the Magistrate should not overlook the actual terms of the conditional order issued u/s 133.