Srikantiah and Others vs H.A. Bhojaraj

Sadasivam, J.—Petition to revise the order of the Executive First Class Magistrate, Ooty, in M.C. No. 8 of 1960 on his file. The

proceedings in this case relate to obstruction of an alleged public road claimed by the respondent in the private property of the petitioners. In the

enquiry u/s 139-A of the Criminal Procedure Code the Executive First Class Magistrate has found that no reliable evidence has been adduced by

the petitioners in support of their denial of the public right of way.

The learned Advocate for the respondent relied on the decision in Muzqffar Ahammad v. Khitindra Bhusan Gupta AIR 1946 Cal. 302 in

support of his contention that where a Magistrate finds in an enquiry u/s 139-A, Criminal Procedure Code, that there is no reliable evidence in

support of the denial of the public right, it is not for the High Court to interfere in Revision. If this decision means that the High Court cannot

interfere with an order u/s 139-A, Criminal Procedure Code, however erroneous it may be, I respectfully dissent from it. It is true the High Court

would not ordinarily interfere in Revision on questions of fact. But if the order of the lower Court discloses that it has misunderstood the scope of

the enquiry u/s 139-A, Criminal Procedure Code, the High Court would interfere in Revision to set right the illegality and would not feel bound by

the erroneous findings of fact arrived at by a wrong approach of the case.

The learned Executive First Class Magistrate has no doubt referred to the relevant decisions in AIR 1933 267 (Nagpur) and Darsan Ram Vs.

The State and Others, but he has failed to correctly apply the principles of the decisions to the facts of the case. If the Magistrate finds that there is

any reliable evidence in support of the denial, his jurisdiction to continue the proceedings ceases and he has no jurisdiction u/s 139-A, Criminal

Procedure Code, to weigh the evidence and decide the respective rights of the pasties. As pointed out in AIR 1933 267 (Nagpur) the Magistrate

has to consider whether the claim put forward by the persons against whom a conditional order has been made is not bona fide, but a mere

pretence to oust his jurisdiction and only when the Magistrate is satisfied about it he shall proceed with the case u/s 137 or 138, Criminal

Procedure Code. In the present case the learned Executive First Class Magistrate has discussed the evidence in the enquiry u/s 139-A, Criminal

Procedure Code, as though in an enquiry u/s 137, Criminal Procedure Code. I fail to see what further enquiry he could hold u/s 137, Criminal

Procedure Code, after what all he has done in the enquiry u/s 139-A of the Code of Criminal Procedure.

It is unnecessary to refer to all the pieces of evidence put forward by the petitioners and it is sufficient to refer to the three strong pieces of

evidence, namely, the absence of the alleged public road in the Government village plan, the absence of the public road in the sale-deeds produced

by the petitioners as the title-deeds in their favour and the claim of the respondents'' uncle for an easement right in the road by referring to it as a

private road. Having regard to the above facts it could hardly be contended that the petitioners'' denial of the public road in their private property is

a mere pretence. It is impossible to accept the finding of the learned Executive First Class Magistrate that the above pieces of evidence are not

''reliable evidence'' to support the denial of the public right by the petitioners.

It is significant to note that the petitioners themselves filed a petition stating that they did not press the petition on the ground that the Panchayat

Board would take appropriate action. It is true that in matters of public right, the fact that private persons who initiate the proceedings do not want

to continue the same would not be a ground for dropping further proceedings. But it should be noted in this case that the petitioners herein denied

the public right of way and the denial was also supported by averments made by the respondents'' uncle in a prior petition. In any event the said

attitude of the respondent could very well have been taken into consideration by the lower Court in deciding whether the claim of the petitioners is

bona fide.

For the foregoing reasons the order of the Executive First Class Magistrate is set aside. In view of the fact that there is '' reliable evidence '' to

support the denial of the public right it is not open to the Executive First Class Magistrate to take further proceedings u/s 137, Criminal Procedure

Code, and hence the proceedings arc stayed u/s 139-A(2), Criminal Procedure Code until the matter of the existence of the said public right of

way is decided by a competent Civil Court.