P. Narayanan and Others vs Sub Divisional Magistrate cum Revenue Divisional Officer and Another

M. Venugopal, J.—The petitioners have preferred the instant Criminal Revision Petition as against the order dated 16.10.2012 in

Na.Ka.A2/1673/2012 passed by the First Respondent/Sub Divisional Magistrate cum Revenue Divisional Officer, Aruppukottai in Virudhunagar

District. The First Respondent/Sub Divisional Magistrate cum Revenue Divisional Officer, Aruppukottai, while passing the impugned final order

dated 16.10.2012 (under Section 141 of Cr.P.C.), has among other things observed that ""the petitioners have erected stone pillar and put up

thorny iron fencing and encroached upon the public pathway in S. No. 260/4 of Muthuramalingapuram village and that the said encroachment

continues and therefore, on 10.4.2012, a direction has been given. In pursuance thereof, on 23.4.2012, the explanations and other details offered

before the First Respondent have been taken into consideration and as such, a notice has been given mentioning that the direction issued on

10.4.2012 in Form No. 20 is found to be a just and valid one. The said direction has been made absolute and the Petitioners have been directed

to abide by the said direction by 29.10.2012, failing which, it has been informed that they will liable for punishment u/s 188 of Cr.P.C.

The Learned counsel for the Petitioners urges before this Court that the order passed by the First Respondent dated 16.10.2012 is against the

Law, weight of evidence and broad probabilities of the case.

According to the Learned counsel for the petitioners, the Executive Magistrate has not adhered to the provisions of Section 133, 138 and 141

of Cr.P.C. and further, he has not passed any order separately making absolute of his direction purported to be passed u/s 133 of Cr.P.C. In this

connection, the Learned counsel for the petitioners relied on the decision in Kranti Parcel Service Vs. The State, wherein, it is held that ''it is

imperative for the Magistrate to record evidence after the respondent appeared in pursuance to show cause notice issued u/s 133 Cr.P.C. and

contested it.

Yet another submission of the Learned counsel for the petitioners is that the Learned Executive Magistrate has not conducted any enquiry in the

manner of conducting a trial in a summons case and further, he has not even chosen to examine any witness and not afforded any opportunities to

the petitioners to establish their case by placing documentary evidence.

The learned counsel for the petitioners projects an argument that the impugned order has not disclosed anything about the explanations

submitted by the petitioners and also that the learned Executive Magistrate has mentioned in the order that it has been prepared on 10.4.2012,

whereas, he has signed the same on 16.10.2012 and as such, it is evident that there is non application of mind in this regard.

Lastly, the learned counsel for the petitioners brings it to the notice of this Court that the impugned order dated 16.10.2012 of the First

Respondent/Sub Divisional Magistrate cum Revenue Divisional Officer cannot be passed because of the fact that already a civil suit in O.S. No.

186 of 2011 is pending for adjudication on the file of the Learned District Munsif, Aruppukottai.

Per contra, the Learned Government Advocate (Criminal Side) appearing for the Respondents submits that the First Respondent passed the

impugned final order dated 16.10.2012, since the petitioners have put up stone pillar and thorny iron fencing and encroached upon the public

pathway in S. No. 260/4 of Muthuramalingapuram village, which is a nuisance.

It is to be pointed out that when a public right is denied, it is incumbent on the Magistrate to hold an enquiry and cannot decide by hearing both

parties and making a local inspection in this regard. Indeed, the ''Public Right'' is to be decided on facts of each case as per decision in Harnandan

Lal Vs. Rampalak Mahato and Another, , as aptly pointed out by this Court.

It is a settled principle of Law that a summons case cannot be decided merely on affidavit and that the opposite party must be given an

opportunity to adduce oral and documentary evidence, if they desire. Also, the term ''Reliable Evidence'' does not mean that it should definitely

establish title, but evidence on which Court can place reliance, in the considered opinion of this Court. In Law, there is no bar to an absolute order

u/s 141 of Cr.P.C., being questioned in a civil Court. Even though the final order made in proceedings u/s 133 of Cr.P.C., is not a judgment as per

Section 354 of Cr.P.C., the requirements that it should contain the reason in support of it cannot be done away with as per decision in Balwant Rai

Vs. Chhangi Ram, worth recalled by this Court.

Undoubtedly, the Magistrate concerned has power to see whether the claim is bona fide Also, it is to be noted that a summon case cannot be

decided merely an affidavit. It is true that ''public nuisance, is defined u/s 268 of I.P.C. Admittedly, the term ''Public Place'' must be open to public

either by a right, user, permission or otherwise. No wonder, the said property is a public place. In case, there is no evidence in support of denial,

the Magistrate will proceed u/s 138 of Cr.P.C. However, if there is evidence, it will be incumbent upon him to stop the proceedings in order to

keep the rights determined by Civil Court as per decision in Datta S. Naik v. Bhikaji Sitaram Karkar 1989 (1) Crimes 348 (Bom.).

At this stage, this Court deems it appropriate to point out the decision in Mool Chandra and Others Vs. State of U.P., , wherein, it is held that

a conditional order confirmed only on the basis of affidavit and counter affidavit without recording evidence as in a summons case would be

unsustainable.

Also, this Court aptly points out the decision in Brij Kishore Rai Vs. State of U.P. and Others, wherein, it is observed that ""where the

Magistrate does not record a finding that the evidence adduced by the opposite party in support of denial was reliable or not makes the order

absolute, the order would be set aside.

As far as the present case is concerned, it is evident from the impugned order of the First Respondent/Sub Divisional Magistrate cum Revenue

Divisional Officer dated 16.10.2012 that the said order does not specifically/pin-pointedly deal with the explanations and other details submitted

by the Petitioners when they appeared in person on 23.4.2012. In fact, the impugned order dated 16.10.2012 of the First Respondent refers

simply to the factum of explanations and details submitted by the Petitioners, who appeared in person on 23.4.2012. To put it shortly, the

impugned order dated 16.10.2012 does not expressly deal in qualitative and quantitative terms as to the explanations and details submitted by the

Petitioners when they appeared before the First Respondent on 23.4.2012 in person. Per contra, the impugned order refers to erecting of stone

pillar and putting up the thorny iron fencing. In fact, the petitioners have filed I.A. No. 531 of 2011 in O.S. No. l86 of 2011 on the file of the

Learned District Munsif, Aruppukottai, praying for temporary injunction under Order 39 Rule 1 and 2 of C.P.C. It is crystal clear that a suit in

O.S. No. 186 of 2011 has been filed by the Petitioners on the file of the Learned District Munsif and the same is pending as on date.

Be that as it may, in view of the fact that even though the impugned order of the First Respondent dated 16.10.2012 (passed u/s 141 of

Cr.P.C.) is not a judgment in terms of Section 354 of Cr.P.C., the same, in the considered opinion of this Court, does not contain an outline of

process of reasoning in regard to the explanations and details submitted by the Petitioners when they appeared on 23.4.2012 before the First

Respondent. (Even the nature of explanations and details furnished by the petitioners have not been mentioned expressly in lucid and candid

terms). To that extent, the order of the First Respondent/Sub Divisional Magistrate cum Revenue Divisional Officer is vitiated, in the considered

opinion of this Court. Further, the said order is not a reasoned/speaking order in regard to the explanations and details furnished/submitted by the

petitioners on 23.4.2012 when they appeared before the First Respondent. As such, the impugned order dated 16.10.2012 of the First

Respondent is not sustainable in the eye of Law and to prevent an aberration of justice, this Court sets aside the same. Consequently, the criminal

revision petition succeeds. In the result, the criminal revision petition is allowed and the order dated 16.10.2012 in Na.Ka.A2/1673/2012 passed

by the First Respondent/Sub Divisional Magistrate cum Revenue Divisional Officer is hereby set aside for the reasons assigned in this Criminal

Revision. Consequently, connected miscellaneous petition is closed. It is open to the First Respondent/Sub Divisional Magistrate/Revenue

Divisional Officer to pass appropriate considered orders afresh (under Section 141 of Cr.P.C.), in the manner known to law and in accordance

with law, after providing due opportunities to the concerned parties to substantiate their point of view, by adhering to the principles of natural

justice.