Ram Pratap and Others vs Ram Autar and Another

M. Wahajuddin, J.—The Petitioners figured as opposite parties in a proceeding u/s 133, Code of Criminal Procedure in the court of Sub-Divisional Magistrate, Karvi, district Banda. On notice as provided under that section, being issued, they filed a written statement (Annexure "2" to the counter-affidavit) denying the claim that any public-path existed and any obstruction has been caused. In support of such denial Ram Pratap Petitioner examined himself (statement is Annexure "1" to the petition) and produced one Jagdeo PW 1 (Annexure "2" to the petition) and an inspection note of Shah Aziz Ahmad dated 8-7-1954 in a case, instituted by Mitganjan against very Ram Pratap relating to obstruction of passage u/s 133, Code of Criminal Procedure, was also filed as Annexure "3" to the present petition. The Magistrate vide its order dated 12-3-1981 observed that the plea of denial is rejected and directed that the case be proceeded u/s 138, Code of Criminal Procedure. The case was then proceeded accordingly and the evidence on behalf of the present opposite party was recorded and vide order dated 30-4-81 (Annexure "6" to the petition), the Magistrate directed that the Chabutra, which has been constructed, causing obstruction be removed. The matter then went in revision. The then Sessions Judge, Banda, vide, its judgment dated 6-7-1981 (Annexure ''7'' to the petition) rejected the revision. The Petitioners have urged that the provisions of Section 137 Code of Criminal Procedure have been completely violated on a number of grounds set up on the objection. It is, further, urged that the final decision in the case is also erroneous. The Petitioner prayed that the orders passed against them be quashed and further orders, as this Court deems fit in the circumstances of the case, may be passed.

The point which has been much stressed is that the provisions of Section 137, Code of Criminal Procedure, have been completely violated by the Magistrate and the Magistrate has misread the objection of the Petitioners as well as the statement of the witness produced by the present Petitioners as to attribute certain admissions, which actually were neither made nor existed.

The learned Counsel for the opposite party No. 1, apart from repelling such arguments, urged that once the court entered into the stage of further evidence u/s 138, Code of Criminal Procedure, and fresh opportunity became available to the Petitioners any want of strict compliance of Section 137 would not defeat the proceedings, nor this Court can exercise any inherent powers.

Before referring to the pronouncements cited before this Court, I may at the very out set observe that the provisions contained u/s 137 new Code of Criminal Procedure, corresponding to Section 139-A of the old Code of Criminal Procedure, have far reaching implications and such provisions have been made on certain important considerations. Whether any place is a public place or a private place is ordinarily a matter within the ambit of civil jurisdiction. On consideration of certain public policies and convenience a remedy u/s 133, Code of Criminal Procedure, has been provided to meet certain ugly situations and at the same time when such matter has been brought under the ambit of the criminal jurisdiction, the Legislature has taken care, safeguard the right of the party concerned to a certain extent. With the object in view it has been provided u/s 137, Code of Criminal Procedure (new) corresponding to Section 139-A Code of Criminal Procedure (old), that the opposite side will be afforded an ex parte opportunity to give evidence in support of his denial of the existence of such public right, as has been set up, and if on enquiry the Magistrate finds that there is any reliable evidence in support of such denial, he shall stay the proceedings until the matter of existence of such right has been decided by a competent civil court. The Legislature has thereby itself visualised that there may be a frivolous and baseless denial, in which case in the very fitness of things the criminal court has been authorised to proceed. On the other hand there may be denial supported by reliable evidence and when that is the position the matter is to be adjudicated by the civil court, which has the ambit and overall jurisdiction in respect of the civil dispute. This apparently is the policy behind the enactment of Section 137, Code of Criminal Procedure, and the matter has to be approached from that angle.

The learned Counsel for the Petitioners has relied upon the cases of Musaddi v. State 1971 AWR 112 and Haji Rahmatullah and Others Vs. Mohd. Saddiq and Others, : Haji Rahmatullah and Others Vs. Mohd. Saddiq and Others, . Both the pronouncements are of this Court. In the case of Haji Rahmatullah (supra), the earlier case of Musaddi was followed. The principles laid down in these two pronouncements is this that if the Magistrate rejects the evidence led u/s 137, Code of Criminal Procedure, or considers such evidence in support of the denial unreliable, he must give reasons for the same considering the evidence from that angle.

Reliance has also been placed upon the case of Mahavir Singh and Others Vs. State and Another, . In that case the powers u/s 482 Code of Criminal Procedure, were exercised for non-compliance of the provisions of the present Section 137, Code of Criminal Procedure.

The learned Counsel for the Petitioners has also relied upon the case of Jai Ram Singh v. Bhuley 1963 AWR 134 and the views that I have expressed regarding the scope, ambit and implication of Section 139-A old Code of Criminal Procedure corresponding to Section 137, Code of Criminal Procedure, is fortified by the view expressed in this case observing as follows:-

Reliable evidence is the evidence of reliable person and all that a Magistrate has to satisfy is that the evidence produced is not false. What is meant by the section is not that the Magistrate should weigh the evidence produced by both the parties and then come to the conclusion, which is more reliable or should be preferred. The object of Section 139-A, Code of Criminal Procedure, is that if the denial of the public path way involves a bona fide claim on the part of the persons denying the public right, the matter should be decided by a competent civil Court and not by a Magistrate in a summary enquiry provided u/s 139-A.

The learned Counsel for the opposite side relied upon the case of Amar Singh Vs. State of U.P. and Others, . I do not find that this pronouncement in any way helps the opposite party. What has been observed is that Section 137, Code of Criminal Procedure (new) does not require any definite proof supporting the denial and the scope of the enquiry u/s 137, Code of Criminal Procedure, is confined only to find whether there is prima facie evidence in support.

The learned Counsel for the opposite side also relied upon the case of Gulab Singh v. State 1960 AWR 44, in which it was observed that the provisions u/s 139-A (old) Code of Criminal Procedure, corresponding to prevent Section 137, Code of Criminal Procedure, is not mandatory but directory. To meet this argument the learned Counsel for the Petitioners has relied upon the commentary contained in AIR Manual IV Edition Volume XII pages 754 and 755, in which a number of pronouncements including many pronouncements of the Allahabad High Court earlier as well as later have been cited and referred to in support of the authors commentary that the provisions of this section are mandatory.

From the Petitioners'' side the case of Babu Singh v. Parmal, 1972 AWR 688has been relied upon. It has been observed at page 690 in paragraph 6 that when the existence of a public right is denied, it is incumbent upon the Magistrate to follow the procedure laid down u/s 139-A, Code of Criminal Procedure and its non-compliance renders the order wholly illegal.

Otherwise also when the Legislature has set two stages and the earliest stage is that on the basis of the evidence led by the opposite party in support of the denial, without any rebuttal from the Petitioners'' side, u/s 138 Code of Criminal Procedure by evidence under that Section, the Magistrate must consider whether there is reliable evidence in support of the denial, non-observance of that provision is bound to defeat the valuable right conferred as to involve prejudice.

With the aforesaid obesrvations concering legal aspect I may now examine the order Annexure "4" to the petition. The Magistrate has stated that the second party in his objection had admitted the existence of path on the spot and his witness has also stated that public way exists in front of the house of second party. This naturally gives an impression that the Magistrate has proceeded on assumption that existence of path and public path is admitted and having started with such assumption the Magistrate further observed that he finds no evidence in support of denial of public path. It is a novel way of approaching the matter. Two witnesses had been examined. He should have referred to their evidence, and considered and discussed it and to then come to any conclusion. If the evidence was not contradictory, as is being urged by the opposite party, he could have used the same in support of his conclusion by way of his reasonings. I am deliberately avoiding the discussion of the evidence, which has been led, because it may prejudice any of the parties, when the matter is approached afresh by the Magistrate. I am, therefore, simply observing as to what has been urged concerning such evidence. Petitioners'' submission is that the witness does not admit any obstruction on any public path and the opposite party also does not admit it audit is urged that if the whole evidence of these two witnesses is perused, the submission may bear out. As to what will be conclusions, after going through the statements of these two persons, is a matter which I feel the lower court may itself consider and examine and I will leave it to the lower court.

It was argued that if the judgment of the Sessions Judge in revision is considered, the present stand of opposite party''s case may stand established. It is noteworthy that the Sessions Judge also has observed that the Magistrate did not make any discussion of the evidence on record and so far as the judgment of the Sessions Judge is concerned, it is based on consideration of entire evidence, namely, the evidence led under the provisions of Section 138, Code of Criminal Procedure as well. While the Magistrate was to determine on the basis of the evidence u/s 137, Code of Criminal Procedure, at the first stage and to decide whether reliable evidence in support of denial exists as to stay the proceedings pending decision in the civil court, or to hold that such evidence does not exist and then proceed u/s 138, Code of Criminal Procedure.

In the result, the petition is allowed and orders dated 6-7-1981 of the Sessions Judge, 30-4-1981 and 12-3-1981 of the Magistrate are set aside, and the Magistrate is directed to first give a finding in pursuance of enquiry u/s 137 Code of Criminal Procedure afresh, considering the evidence that has been led in support of that denial and then proceed in accordance with law one way or the other, as the case may be. It is desirable that the lower court may expedite the disposal of the case.