The Roranwala Amin Ganj Company vs Bhagwan Dass

Gopal Singh, J.—These are four criminal revisions The Petitioner is common to all. The Petitioner is a limited company described as the Roranwala Amin Ganj Company Limited, Roranwala. The Respondent in Criminal Revision No. 644 of 1969 is Bhagwan Dass and that in Criminal Revision No. 646 of 1969 is Jiwan Mal. The Respondents in Criminal Revision No. 688 of 1969 are Chaman Lal and Gopi Ram. The Respondent in Criminal Revision No. 689 of 1969 is jai Chand.

The facts pertaining to all the four revision petitions are identical and involve common question of law and need not be recapitulated in respect of each case. The facts given below pertain to the case giving rise to Criminal Revision No. 644 of 1969 .

The Petitioner company manages the affairs of mandi in the town of Roranwala, In front of the shops in the mandi, there is road 95 feet in width. That road is being maintained and looked after by the Petitioner company.

The Petitioner company filed on December 12, 1967 an application u/s 133 of Code of Criminal Procedure against Bhagwan Dass Respondent. It was stated in that application that the Respondent had made encroachment upon an area of 37 feet 19 feet of the road by ejecting a katcha bourdary wall and also by construction of a latrine therein.

Prior to the issue of notice to the Respondent to show cause against the encroachment, the Executive Magistrate recorded the statement of Des Raj, Secretary of the Petitioner company P. W 1. He stated that the road had been encroached upon by the Respondent. Charanjit Singh, Patwari P. W. 2 appeared to prove that the road encroached upon by the Respondent according to the entries made in the jamabandi was 15 to 18 karams in width. Lakhu Ram P. W. 3 went into the witness box and proved the encroachment by the Respondent. After recording the above evidence the Magistrate passed the order on March 22, 1968 directing the issue of notice to to the Respondent to lift encroachment within 15 days of the service of the notice or to show cause against removal of encroachment by appearing before the Magistrate on April 18, 1968.

The Respondent in reply filed written statement on May 2, 1968. In that written statement, he denied the existence of public right in the road. He further stated that the structure existing on the road was very old one and that the application of the Petitioner company filed u/s 133, Code of Criminal Procedure deserved to be dismissed

The counsel for the Respondent applied on October 28, 1968 for inspection of the spot. The Magistrate made its inspection on November 9. 1968 and recorded inspection report on November 10, 1968. In that report, he took the view that the structure on the road alleged by the Petitioner company to be encroachment appeared to be old and existed since 1947. He said that he not only so found from the personal observation of the nature of the structure as existing on the spot but also enquiries from the persons in the neighbourhood revealed that the structure was that much old. Taking that view of the matter, the Magistrate dismissed the application on November 28, 1968. Feeling aggrieved of the above order of the Magistrate the Petitioner company filed a petition for revision with the District Magistrate, That revision petition was dismissed on February 12, 1969. The Petitioner company has now invoked the revisional jurisdiction of this Court u/s 439 of the Criminal Procedure Code.

Shri Prem Nath Aggarwal appearing on behalf of the Petitioner has contended that neither procedure provided in Section 139 A nor that laid down in Section 137 of the Code of Criminal Procedure has been followed by the Magistrate while disposing of the application filed an behalf of the Petitioner u/s 133, Code of Criminal Procedure and consequently the order is vitisted and untenable.

4 After the written statement had been filed on May 2, 1963 in response to the notice issued to the Respondent to show cause as to why the encroachment made by him should not be removed, the Respondent was asked if he admitted or denied the existence of public right in the road said to have been encroached upon. In reply, he stated that he did not admit the existence of any public right in the road The Respondent having denied the existence of that right in the road encroached upon it was obligatory upon the Magistrate under Sub-section (1) of Section 139-A, Code of Criminal Procedure to hold enquiry into the matter. In other words, he had to record evidence in support of the denial of existence of that right in the road encroached upon. He never followed that procedure After having recorded the evidence in support of the denial he had to take a decision under Sub-section (2) of Section 139-A before having resort to the provisions of Section 137 of the Code. If the Magistrate found that there was any reliable evidence in support of the dedial, he had to stay the proceedings until the matter of existence of such right had been determined by a competent Civil Court and if he found that there was no such evidence, he had to proceed as referred to in Section 137 of the Code.

Instead of complying with the mandatory provisions of Section 139-A, Criminal Procedure Code, the Magistrate, on an application made on October 28, 1968 by the counsel for the Respondent inspected the place in dispute on November 9, 1968 and after making enquiries from certain persons present in the neighbourhood, he drew up inspection report on November 10, 1968. On the basis of that report, he passed the order on November 28, 1968 finding that the structure raised by the Respondent upon the road was 20 years old without holding inquiry as contemplated by Sub-section (1) of Section 139 A of the Code of Criminal Procedure or making an order as covered by Sub-section (2) of Section 139-A. In case, the Magistrate found that there was no reliable evidence in support of the denial of existence of any public right in the road and the Respondent wanted to show cause against the lifting of the encroachment, the Magistrate had to record evidence by following the procedure given in Chapter XX of the Code of Criminal Procedure perta-taining to the trial of summons cases. In case of contest between the parties, according to the procedure laid down in that Chapter, the evidence of both the applicant and the Respondent had to be recorded. Nothing of the kind has been done in the present case. Neither the evidence of the applicant was taken nor that of the Respondent. If after recording the evidence, the Magistrate is satisfied that the order passed by him u/s 133, Criminal Procedure Code, is not reasonable and proper, he need not take any further action and the proceedings shall lapse. In case, he is not so satisfied, the order passed by him u/s 133, Criminal Procedure Code, shall be made absolute.

Thus both the mandatory provisions of actions 137 and 139 A, Code of Criminal Procedure applicable to applications made u/s 133 have been given a go-by.

Without recording any evidence either u/s 139-A or u/s 137, Criminal Procedure Code, the Magistrate inspected, the spot. He exercised that power u/s 539 B, Criminal Procedure Code. Under that provision, a Court can, at any stage of an enquiry, trial or other proceeding, visit and inspect any place, which in its opinion is necesary to view for the purpose of properly appreciating the-evidence given at such enquiry or trial In the present case, no enquiry was held or trial conducted by the Magistrate, the under lying object of Section 539-B, Criminal Procedure Code, is to enable the Court to properly appreciate the evidence given at an enquiry or trial in the light of the place in dispute viewed and inspected by him If there has been no enquiry or trial and hence no evidence recorded the question of exercise of power for local inspection u/s 539 B, Criminal Procedure Code, does not arise. Memorandum of facts observed and noted by a Court at the time of inspection is meant for appreciating the evidence in the light of what was observed by the Court. Memorandum of inspection cannot per se constitute substantive evidence for determining the dispute between the parties as contemplated by Section 133. Criminal Procedure Code. The memorandum of inspection is in aid of the evidence taken in the case In the absence of evidence, documentary or oral or both adduced by the parties in the case, memorandum of inspection prepared by the Magistrate could not be availed of as substitute for the evidence to be recorded either u/s 139-A or u/s 137 of the Code.

as the imperative provisions of Sections 137 and 139-A of the Code of Criminal Procedure have been ignored and the procedure devised and enjoined by them not followed, the orders of the Courts below are not maintainable.

In the result. I allow all the above four criminal revision petitions, set aside the orders sought to be revised and remand the cases to the trial Magistrate. He will proceed according to law bearing in mind the observations made above. The counsel for the parties have undertaken that the parties will appear before the Magistrate on May 8, 1970.