Rameshwar Prasad and Others vs State of U.P. and Others

Palok Basu, J.—Rameshar Prasad and 21 others have challenged the order dated 18-6-1992 passed by Sub-Divisional Magistrate, Handia, Allahabad in case No. 20-A/37 of 1991-92 u/s 133 Code of Criminal Procedure whereby it was directed that those proceedings would remain stayed until the parties get their rights determined u/s 137(2) Code of Criminal Procedure.

The small facts are that the applicants made a grievance on 15-9-1989 before the Sub-Divisional Magistrate that opposite party Jang Bahadur and others have made illegal construction on a public path way and that has caused obstruction which should be removed. A conditional order was passed by the Magistrate on 21-5-1990 calling for a report from the Naib Tehsildar. After the service of the conditional order on the opposite party they filed their written statement on 23-7-1990. A police report was also called which is dated 2-12-1990 on considering the materials the Magistrate passed final order on 13-3-1991 to the effect that the illegal construction should be removed forthwith.

Aggrieved by the aforesaid order dated 13-3-1991 a revision was preferred before the Sessions Judge in which a final order was passed on 22-11-1991 whereby the revision stood allowed and the matter was remanded to the Magistrate''s Court. The final order in the revision reads as follows:

The revision application is hereby allowed The order passed by the learned Magistrate is hereby set aside and the case is remanded back to him for disposal afresh in accordance with law after affording the parties to adduce evidence both under Sections 137 and 138 Code of Criminal Procedure. The parties are directed to appear before the learned Magistrate on 12-12-1991.

Sd. R.S. Pandey III Addl. Sess.Judge, Allahabad 22-11-1991.

After the matter was remanded, the Magistrate followed the procedure u/s 137(2) and put question to the opposite parties. After having done so the Magistrate has passed the impugned order on 18-6-1992. Translated into English the Magistrate''s order would read as follows:

Under the circumstances the proceedings are stayed and the parties are directed to get existence of their rights determined through competent Court. Record should be sent to Record Room.

Sd. R.N. Dubey Sub Divisional Magistrate, Handia, 18-6-1992.

In support of this revision Sri. P.P. Yadav, learned Counsel for the applicants. Sri. R.C. Singh, learned Counsel for the opposite parties and Km. N.A. Moonis, learned A.G.A. have been heard at length. At the time of admission a counter affidavit was called whereupon parties have exchanged affidavits and this revision is being disposed of finally at the admission stage

Sri. P.P. Yadav, learned Counsel, for the applicants vehemently argued two points. Firstly, it was argued by him that the remand order passed by the Sessions Judge as noted above makes it incumbent upon the Magistrate to record evidence u/s 137 as well as u/s 138 Code of Criminal Procedure. In this connection it was argued that no choice or discretion was left with the Magistrate to by pass the aforesaid mandate of the Sessions Judge and he could not sit in appeal against the superior Court''s judgment and go to record the evidence u/s 138 Code of Criminal Procedure. It will be convenient to take up the argument first and deal with it before a second argument is touched.

It is true that in the aforesaid order of Sessions Judge while remanding the matter he had used Sections 137 and 138 Code of Criminal Procedure under which the Magistrate has to take recourse to. The law, however, is that only when after exhausting the stage necessary u/s 137 Code of Criminal Procedure the Magistrate finds that there is no reliable evidence in support of denial then he has to proceed to record evidence u/s 138 Code of Criminal Procedure. In view of the specific provision contained u/s 137(2) Code of Criminal Procedure there is absolutely no power with the Magistrate to travel to record the evidence u/s 138 Code of Criminal Procedure once he recorded the finding that there was reliable evidence in support of such denial.

It necessitates a closer look at the order that has been impugned in the instant case. The Magistrate has narrated the facts giving rise to the proceedings and has adverted to the remand order passed by the Sessions Judge and thereafter he had observed that the documentary evidence was produced by the opposite parties inasmuch as oral evidence was also recorded. After having mentioned the details of the revenue record and the report of the Naib Tehsildar the Magistrate has recorded the following observation which are for ready reference, being, quoted (Translation by the Court):

In accordance with the provision u/s 137(2) Code of Criminal Procedure I find that there exists reliable evidence in support of denial of the public Pathway".

Under the circumstances the Magistrate could not have traveled to record evidence u/s 138 Code of Criminal Procedure.

There cannot be any doubt on the argument advanced that the Magistrate''s Court can never sit over the judgment and order of a superior Court when exercising the, power u/s 439 Code of Criminal Procedure. He has to follow the mandate as contained in the Revisional Court''s order and interprete the evidence or order passed by the Superior Court in accordance with the provisions contained in the said chapter. Considering the facts it is more than apparent that the Magistrate has fully abided by the order of the Sessions Judge when he has proceeded to enquire the matter u/s 137 Code of Criminal Procedure and then having come to the conclusion that the evidence was reliable in support of the plea of denial of the existence of rights of the public path-way, he asked the parties to get the right determined by the competent Court. There is, therefore, no error in the order of the Magistrate.

Coming to the second argument, it was criticised that the aforesaid finding as quoted above is not sufficient in discharging his responsibility as envisaged by Section 356 Code of Criminal Procedure which has laid down the conditions for drawing up a judgment. Suffice it to say that this was neither the stage nor the type of proceedings where two sides had led evidence after 138 Code of Criminal Procedure stage was reached. It may be remembered that the matter has been stayed at the stage of Section 137(2) Code of Criminal Procedure therefore the question of valuation of any evidence as envisaged by Section 138 Code of Criminal Procedure did not arise. It follows that the type of finding recorded by the Magistrate is in consonance with the provisions of Section 353 read with Section 354 Code of Criminal Procedure and the requirement have been fully complied with.

Sri. P.P. Yadav, learned Counsel for the applicants argued that on the strength of the argument advanced and noted above it was incumbent upon the Magistrate to have referred to the oral evidence produced by the answering opposite patties which included the statement of Sita Ram and the Magistrate should have directed the applicants to adduce their evidence u/s 138 Code of Criminal Procedure as contained in the Sessions Judge''s order. In view of the facts stated above these two arguments do not arise and are not tenable. There was an oral request advanced by Sri. P.P. Yadav, learned Counsel for the applicants that the matter is fit one for appeal to the Supreme Court. No such question of public importance is. Involved in the matter and no certificate, therefore, ran be granted.

In view of the aforesaid discussion, this revision fails and is hereby dismissed. Interim order dated 7-7-1992 is hereby vacated.