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1971 Supreme(Gau) 7
GAUHATI HIGH COURT
R.S. Bindra, J.
NAOREM LEIKHAM SINGH AND OTHERS
VERSUS
THE STATE AND ANOTHER
Criminal Revn. Case No. 8 of 1971 (Against order of S.J., Manipur,)
Decided on : 4-2-1971, September 20, 1971.
The inquiry contemplated by Section 139-A of the Criminal Procedure Code is confined only to the denial of the public right made by the person against whom the conditional order is issued, and that it has nothing to do with the inquiry made for determining whether or not the conditional order made under Section 133(1) is reasonable or proper.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 139-A - INTERPRETATION - INQUIRY INTO DENIAL OF PUBLIC RIGHT - PROCEDURE.
Fact of the Case:
The petitioners were accused of causing obstruction or nuisance to a pathway in Kakching Bazar area by setting up stalls. The Magistrate passed a conditional order under Section 133(1), Criminal Procedure Code, and later examined the petitioners under Section 139-A(1). The petitioners denied the existence of any public right in respect of the land in dispute. The Magistrate then proceeded to hold an inquiry on the merits of the case and passed a final order directing the petitioners to remove the stalls.
Finding of the Court:
The High Court held that the Magistrate erred in proceeding to hold an inquiry respecting both the denial of public right and the merits of the alleged obstruction, nuisance, or danger to the public without first determining the question of public right under Section 139-A. The Court found that the petitioners were prejudiced by the Magistrate's failure to follow the proper procedure, and quashed the final order.
Issues: 1. Whether the Magistrate erred in proceeding to hold an inquiry respecting both the denial of public right and the merits of the alleged obstruction, nuisance, or danger to the public without first determining the question of public right under Section 139-A? 2. Whether the petitioners were prejudiced by the Magistrate's failure to follow the proper procedure?
Ratio Decidendi: The Court held that the inquiry contemplated by Section 139-A is confined only to the denial of the public right made by the person against whom the conditional order is issued, and that it has nothing to do with the inquiry made for determining whether or not the conditional order made under Section 133(1) is reasonable or proper. The Court further held that the Magistrate erred in proceeding to hold an inquiry on the merits of the case without first determining the question of public right under Section 139-A, and that the petitioners were prejudiced by the Magistrate's failure to follow the proper procedure.
Final Decision: The High Court allowed the revision petition, set aside the final order passed by the Magistrate and the order of the Sessions Judge, and remitted the case to the Magistrate with the direction to first hold an inquiry in terms of Section 139-A respecting the denial of public right on behalf of the petitioners.
At the instance of Kh. Ibobi Singh, the respondent No. 2 of this revision petition, the Police made an enquiry into his allegation of obstruction or nuisance caused to a path-way in Kakching Bazar area by the petitioners herein, and then made a report on 6-3-1968 to the Sub Divisional Magistrate, Thoubal, recommending proceedings under Section 133, Criminal Procedure Code. It was on 21-6-1969 that the Magistrate passed the conditional order under Section 133(1), Criminal Procedure Code. When the petitioners put in appearance on 7-11-1968 in obedience to the notice issued to them by the Magistrate they denied the existence of any public right in respect of the land over which obstruction was alleged to have been caused by setting up of stalls. the Magistrate then fixed the case fro evidence on 13-11-1969 without making it clear whether evidence had to be led in respect of the denial of the public right made by the petitioners or whether on the merits of the alleged obstruction or nuisance. No evidence could however be recorded on 13-11-1969, nor on another four dates to which the proceedings were adjourned from time to time. It was on 6-2-1970 that the Magistrate took note of the provisions of Section 139-A. Criminal procedure Code and examined the petitioners in terms of sub-section (1) of that section. The petitioners happened to deny the existence of public right in respect of the land in dispute. The Magistrate then adjourned the case to 12-2-1970 calling upon the petitioners to examine their witnesses. However, it was again not specifically stated in the order whether the petitioners were to lead evidence on the question of denial of public right concerning the land in dispute, or on the merits of the case. The Magistrate thereafter examined witnesses both on behalf of the petitioners and the State and decided the case on merits by his order dated 26-9-1970 holding "mobile stalls have been constructed by the Ops. within the Kakching Bazar area which is a notified area and that their stalls have caused obstruction, nuisance and annoyance to the public and that they should be removed." He allowed time until 26th of September 1970 to the petitioners for carrying out directions given in the order.
2. The petitioners having felt aggrieved with that order filed a revision petition in the Court of Sessions Judge, who, by this order dated 4-2-1971, rejected the same. The Sessions Judge negatived the contention advanced on behalf of the present petitioners that the final order passed by the Sub-Divisional Magistrate is vitiated as the proceedings culminating in it bristle with procedural irregularities.
3. After weighing the arguments addressed at the bar and going through the record of the case. I feel satisfied that the order dated 29-6-1970 cannot be legally sustained, nor the one dated 4-2-1971 passed by the learned Sessions Judge. Sub-section (1) of Section 139-A provides that where an order is made under Section 133 for the purpose of preventing obstruction, nuisance or danger to the public in the use of any way, river, channel or place the Magistrate shall, on the appearance before him of the person against whom the order was made, question him as to whether he denies the existence of any public right in respect of the way, river, channel or place, and if he does so, the Magistrate shall, before proceeding under Section 137 or Section 138, inquire into the matter. The expression "inquire into the matter" used in sub-section (1) has reference very clearly to the denial of the existence of the public right made by the person against whom the conditional order under Section 133 is passed. This interpretation of the expression is reinforced by the other expression used in the same sub-section, viz., "before proceeding under Section 137 or Section 138". Which clearly means that the inquiry respecting the merits of the alleged obstruction or nuisance is to be deferred until a decision has been recorded on the denial of publi
