Munshi and Others vs Tara Chand and Others

M.M. Gupta, J.—This revision has been filed by Munshi and others against order passed by the learned IV Additional Sessions Judge, Muzaffarnagar setting aside the order passed by the learned Magistrate in proceedings u/s 133 Code of Criminal Procedure in which he finally held that the public way in question obstructed was not a public way. The case a as, therefore, remanded for fresh proceedings u/s 138, Code of Criminal Procedure and then giving final order according to law.

What happened in this case was that on 18th October 1978 Tara Chand opposite party No. 1 moved an application that the applicants of this revision had made certain constructions in the public way in question as a result of which the flow of the water of their house was obstructed and their right of way was also obstructed. After this application was moved a Police report was called for and after looking into that Police report a preliminary order u/s 133 Code of Criminal Procedure was passed by the learned Magistrate on 18-10-1978. A notice of that order was served on the applicants and in pursuance of that notice they appeared before the learned Magistrate. The learned Magistrate proceeded u/s 133 Code of Criminal Procedure. After being satisfied that their was no satisfactory evidence of the denial of the public way the learned Magistrate proceeded u/s 138 Code of Criminal Procedure. After recording further evidence u/s 138 Code of Criminal Procedure the learned Magistrate came to to the conclusion that the opposite parties had failed to establish the existence of the public way. He, therefore, dismissed the application u/s 133 Code of Criminal Procedure and dropped the proceedings.

Being dissatisfied with that order Tarachand opposite party No. 1 went in revision before the learned Sessions Judge which was heard by the learned IV Additional Sessions Judge, Muzaffarnagar. The learned Sessions Judge set aside the order passed by the learned Magistrate dropping the proceedings and remanded the case to the court of the learned Magistrate for fresh proceedings u/s 138 Code of Criminal Procedure. The view of the learned Sessions Judge was that once the learned Magistrate had come to the conclusion in proceedings u/s 137 Code of Criminal Procedure that he was not satisfied with the denial of the public way it was not open to him to enter into reappraisal of evidence and to come to the conclusion that the public way did not exist. The order passed by the learned Sessions Judge, has now been challenged in revision by Munshi and others who were opposite parties in the proceedings before the learned Magistrate.

I have heard the learned Counsel for the applicants as well as the learned Counsel for the opposite parties. Section 133 Code of Criminal Procedure deals with the obstruction or nuisance in public. Under this section if a Magistrate on receiving the report of the Police Officer or other information and on taking such evidence, if any, as he thinks fit, considers that any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel which is or may be lawfully used by the public; (since we are not concerned with other clauses of this section I need not quote them) in such a case the Magistrate can pass a conditional order requiring the person causing such obstruction or nuisance. Thus, satisfied he will pass a preliminary order u/s 133, Code of Criminal Procedure. The Magistrate is required to proceed u/s 137 Code of Criminal Procedure and he will call upon the parties causing such obstruction or nuisance in the public way and question him about the existence of any public right and after questioning him if the Magistrate is satisfied that there is any reliable evidence in support of such denial, he shall stay the proceedings until the matter of the existence of such right has been decided by a competent court; and, if he finds that there is no such evidence of denial, he shall proceed u/s 138 Code of Criminal Procedure. Sub-section (3) of Section 137 Code of Criminal Procedure provides that a person who has, on being questioned by the Magistrate under Sub-section (1), failed to deny the existence of a public right of the nature therein referred to, or who, having made such denial, has failed to adduce reliable evidence in support thereof, shall not in the subsequent proceedings be permitted to make any such denial. Subsequent to the passing of the order under Sub-section (3) of Section 137 Code of Criminal Procedure the Magistrate will proceed u/s 138 Code of Criminal Procedure and require the person against whom an order u/s 133 Code of Criminal Procedure is made to show cause against the order and record evidence which may be given by that party. If, however, the Magistrate is satisfied that the order, either as originally made or subject to such modification as he considers necessary, is reasonable and proper, the order shall be made absolute without modification, or, as the case may be, with such modification; but, if the Magistrate is not so satisfied, no further proceedings shall be taken in the case Looking into the Scheme of the section it appears to me that the intention of the Legislature was to give finality to the order u/s 137(3) Code of Criminal Procedure and such decision taken u/s 137(3) Code of Criminal Procedure could not be challenged again in proceedings u/s 138 Code of Criminal Procedure. The words in Sub-section (3) of Section 137 Code of Criminal Procedure are that such person "shall not in the subsequent proceedings be permitted to make any such denial". This certainly shuts out that party to take up such denial again in proceedings u/s 138 Code of Criminal Procedure. It has, however, been contended by the learned Counsel for the applicants that it may debar the party from making such denial u/s 138 Code of Criminal Procedure but the Magistrate himself is not debarred from holding that the right of public way did not exist. From the Scheme of things in these sections it does not appear that it was open 10 the learned Magistrate to re-enter into this question as he will be relegated back to the position mentioned in Sub-clause (2) of Section 137 Code of Criminal Procedure and he will have to stay the proceedings until the matter of the existence of such right has been decided by a competent court. The provisions of the old Section 139A Code of Criminal Procedure are analogous to the provisions of Section 137 Code of Criminal Procedure 1973. In Basant Lal v. Hira Lal 1970 AWR 620 it was held that the words, "shall not in the subsequent proceedings be permitted to make any such denial", provided that if a person against whom the conditional order is directed either does not deny the existence of the public right or if he denies it but fails to adduce reliable evidence in support of the denial he will not be entitled or permitted to deny the existence of the public right in subsequent proceedings u/s 137. The intention of the Legislature was that the question of the existence of the public right shall not be decided by the Magistrate in the summary proceedings under Chapter X Code of Criminal Procedure. If the public right is not denied he must proceed on the basis that it exists. If the reliable evidence is produced in support of the denial and public right is denied he must stay the proceedings till the matter is decided by a competent civil court but if in support of such denial reliable evidence is not produced must again proceed on the basis that the public right exists. Once the Magistrate has recorded an order u/s 139-A (2) that the person denying the existence of the public right has failed to adduce reliable evidence the question cannot be reopened in subsequent proceedings u/s 137 CPC 1898.

In this view of the matter I do not think that there is any force in this revision. The learned Magistrate shall proceed to decide the case in accordance with the direction given by the learned Sessions Judge. The learned Magistrate will be free to come to any conclusion in respect of the objections raised by the other party but by accepting the fact of existence of public way.

The revision is, therefore, dismissed.