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PATNA HIGH COURT
Kanhaiya Singh and N.L.Untwalia JJ.
Darsan Ram
Versus
State Of Bihar
Criminal Reference No. 152 of 1956 ;
Decided On : JUNE 09, 1958
CRIMINAL PROCEDURE CODE - SECTION 139A - ENQUIRY INTO DENIAL OF PUBLIC RIGHT - PROCEDURE - MAGISTRATE TO QUESTION PARTY DENYING PUBLIC RIGHT AND INQUIRE INTO MATTER - IF RELIABLE EVIDENCE IN SUPPORT OF DENIAL, PROCEEDINGS TO BE STAYED UNTIL DECISION BY CIVIL COURT.
Fact of the Case:
A dispute arose regarding the existence of a public path on a piece of land. The Sub-Divisional Magistrate initiated a proceeding under Section 133 of the Code of Criminal Procedure (CrPC) and directed the removal of the obstruction. The petitioner, Darsan Ram, denied the existence of the public path and filed a petition. The case was transferred to another Magistrate, Mr. A. M. Khair, who held a preliminary hearing under Section 139A of the CrPC. He found that there was no reliable evidence in support of the denial and proceeded under Section 137 of the CrPC.
Finding of the Court:
The court held that the Magistrate erred in not following the procedure laid down in Section 139A of the CrPC. The Magistrate should have first held an inquiry to determine if there was any reliable evidence in support of the denial of the public right before proceeding under Section 137 or Section 138 of the CrPC. The court also held that the Magistrate erred in allowing both parties to adduce evidence and then reaching a conclusion. The enquiry under Section 139A is of a summary character, and the Magistrate should only consider evidence in support of the denial of the public right.
Issues: 1. Whether the Magistrate followed the procedure laid down in Section 139A of the CrPC? 2. Whether the Magistrate erred in allowing both parties to adduce evidence and then reaching a conclusion?
Ratio Decidendi: 1. The court held that the Magistrate erred in not following the procedure laid down in Section 139A of the CrPC. The Magistrate should have first held an inquiry to determine if there was any reliable evidence in support of the denial of the public right before proceeding under Section 137 or Section 138 of the CrPC. 2. The court also held that the Magistrate erred in allowing both parties to adduce evidence and then reaching a conclusion. The enquiry under Section 139A is of a summary character, and the Magistrate should only consider evidence in support of the denial of the public right.
Final Decision: The court accepted the reference and set aside the orders of the Magistrate dated 22-9-1955 and 20-12-1955. The case was sent back to the Magistrate for disposal in accordance with law from the stage when the petitioner, Darsan Ram appeared before the Magistrate and filed the show cause petition denying existence of the public right.
Kanhaiya Singh, J.
1. This is a reference by the Additional Judicial Commissioner, Ranchi, under Section 438 of the Code of Criminal Procedure for quashing the orders of the Magistrate dated 22-9-1955 and 20-12-1955, substantially on the ground that they were made in violation of the provisions of Sec.139A of the Code.
2. The facts have been correctly stated by the learned Additional Judicial Commissioner in his reference, and they may be briefly recapitulated here. On the report of the police choukidar alleging obstruction by the petitioner, Darsan Ram, on a public path forming part of plot No. 1476 in village Khatanga within the Bero police station, the Sub-Inspector of Police moved the Sub-Divisional Magistrate for action against the petitioner and also Doman Ram and Raman Ram. On 14-3-1955 the Sub-Divisional Magistrate passed an order, which is prima facie vague, directing the local police to remove the encroachment from the path or to show cause against the order on 5-4-1955.
The petitioner, Darsan Ram, appeared on that date and filed a petition denying the existence of any public path as alleged. Thereupon, the Sub-Divisional Magistrate called upon the first party, that is, the State, to appear on 23-4-1955 to adduce evidence on the point that the land in question is a public road. He also directed the petitioner as well as Doman Ram and Raman Ram to appear on that date. On the next date, an enquiry by a Magistrate, Mr. A. N. Dey, was directed. Mr. Dey submitted his report, and the Sub-Divisional Magistrate considered that a detailed measurement of the land was necessary. Eventually, a pleader commissioner was appointed for the purpose.
After the submission of the report by the pleader commissioner the Magistrate thought that a proceeding under Sec.133 of the Code should be started. He accordingly recorded the fallowing order: "It is better that this matter be decided in a proceeding under Sec.133, Criminal P. C. Issue notice to the parties to remove the obstruction from the road by 3-8-55."
Thereupon, Darsan Ram filed a fresh petition denying existence of public right on the disputed land. The other two members of the second party, namely, Doman Ram and Raman Ram, filed jointly another petition in support of the existence of such a right and alleging encroachment by Darsan Ram on this road. Thereafter, the case was transferred to Mr. A. M. Khair on 6-8-1955 for disposal. This Magistrate fixed 22-9-1955 for "preliminary hearing under Sec.139A, Criminal P. C." Both the parties were summoned to appear on that date. On 22-9-1955 Mr. Khair recorded the following order; "All the 3 members of O. P. present with their lawyers. The lawyer of Darshan files R. S. Khatian and map. The khatian shows that plot 11476 is ghair-mazrua malik shamilat. The lawyer of Darshan (O. P.); produces Sitaram Ray V/s. Badri Ray, AIR 1935 Pat 218 (2), and says that now that the tide is denied by the O. P. so there is no need now to take further evidence.
Copy of the map prepared by pleader commissioner and copy of the report accompanying that map is shown by the lawyer of Doman and Raman (O. P.) from which it appears that the public path is R. S. Plot No. 1488 which continues into R. S. Plot No. 1476 for some links. So the question cannot be so easily decided today as suggested by the lawyers of Darshan.
I deem it necessary to take further action in the matter and take evidence under Sec.137, Criminal P. C., and also for local inspection of the plots. Put up on 2-10-1955 for local inspection and evidence under Sec.137, Criminal P. C., at the spot. Witnesses must be ready. O. P. Raman and Doman, Darshan do not claim trial by Jurors."
He held local inspection in presence of the parties and examined and cross-examined some witnesses. He fixed 8-12-1955 for order "about my opinion about Sec.139A, Criminal P. C." On 20-12-1955 he recorded the following order;
"...... I find that there is no reliable evidence in support of the denial of the public
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