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IN THE HIGH COURT OF ALLAHABAD
D. S. Mathur, J.
KISHORILAL - Appellant
Versus
STATE THROUGH P.W.D.DISTRICT ENGINEER, JALAUN AT ORAI - Respondents
Criminal Ref 91 Of 1959
Decided On : 05/13/1959
CRIMINAL PROCEDURE CODE - SECTION 133, 135, 136, 137, 139A, 537 - ENCROACHMENT ON PUBLIC WAY - PROCEDURE TO BE FOLLOWED - JURISDICTION OF MAGISTRATE - INTERPRETATION OF SECTIONS - FAILURE OF JUSTICE - IRREGULARITY - SECTION 537 - APPLICABILITY.
Fact of the Case:
In two separate proceedings under Section 133 Cr. P. C., the Tahsildar-Magistrate passed final orders directing Kishori Lal and Ram Singh to remove alleged encroachments on a public way. The Additional District Magistrate made references to the High Court recommending that the final orders be set aside and the magistrate directed to proceed afresh according to law, on the grounds that the Tahsildar-Magistrate did not follow the procedure laid down in Section 139A, Cr. P. C., and that he had no jurisdiction to pass final orders in the proceedings.
Finding of the Court:
The High Court held that the Tahsildar-Magistrate had jurisdiction to pass final orders in the proceedings, as he was competent to take cognizance of the proceeding and no failure of justice was occasioned. However, the court found that the Tahsildar-Magistrate had not followed the procedure laid down in Section 139A, Cr. P. C., and that this irregularity had occasioned a failure of justice. Therefore, the final orders passed by the Tahsildar-Magistrate were set aside, and the proceedings were ordered to be held afresh in accordance with the law.
Issues: 1. Whether the Tahsildar-Magistrate had jurisdiction to pass final orders in the proceedings? 2. Whether the Tahsildar-Magistrate followed the procedure laid down in Section 139A, Cr. P. C.? 3. Whether the irregularity committed by the Tahsildar-Magistrate occasioned a failure of justice?
Ratio Decidendi: 1. The court held that the Tahsildar-Magistrate had jurisdiction to pass final orders in the proceedings, as he was competent to take cognizance of the proceeding and no failure of justice was occasioned. 2. The court found that the Tahsildar-Magistrate had not followed the procedure laid down in Section 139A, Cr. P. C., which requires the magistrate to conduct an inquiry to determine whether there is reliable evidence in support of the denial of the existence of a public right of way before proceeding under Section 137 or Section 138, Cr. P. C. 3. The court held that the irregularity committed by the Tahsildar-Magistrate in not following the procedure laid down in Section 139A, Cr. P. C., had occasioned a failure of justice, as the parties had been materially prejudiced by the magistrate's failure to hold the inquiry.
Final Decision: The High Court accepted both references and set aside the final orders passed by the Tahsildar-Magistrate. The court further ordered that both the proceedings should now be held afresh in accordance with the law.
( 1 ) THESE are two references under Section 438 Cr. P. C. which have been registered as Nos. 90 and 91 of 1959, by the Additional District Magistrate of Jalaun with the recommendation that final orders passed, by the Tahsildar Magistrate, Kal-pi, in two separate proceedings under section 133 Cr. P. C. against Kishori Lal and Ram Singh, respectively, be set aside and the magistrate directed to proceed afresh according to law.
( 2 ) THE District Engineer (P. W. D.), Orai, submitted reports for taking proceedings under Section 133 Cr. P. C. against Kishori Lal and Ram Singh for having made encroachments on a public way. These reports were taken cognizance of by the Sub-Divisional Magistrate, Kalpi, and in both he ordered that a notice be issued to the opposite party requiring him to remove the encroachment within 15 days or to appear before the Tahsildar-Magistrate Second Class, Kalpi, on the date specified in the order. Kishori Lal put in his appearance on 1-10-1958. and filed a written statement denying the existence of a public right of way over land on which the alleged constructions stood. His case, in brief, is that the alleged constructions were old and did not stand on any part of p. W. D. road and that his claim had been upheld by the civil court in a regular suit instituted by him. The Tahsildar-Magistrate fixed 8-10-1958 for there-cording of evidence of P. W. D. and 13-10-1958 for the evidence of the opposite party, namely, Kishori Lal. Evidence was recorded on those dates and arguments heard on 17-10-58. The notice was made absolute under order dated 29-10-58 of the Tahsildar-Magistrate,
( 3 ) IN the other reference, Ram Singh put in his appearance before the Tahsildar-Magistrate on 16-10-1958 and filed his objection wherein he denied the existence of a public right of way alleging that the land on which the constructions stood did not belong to P. W. D. He also made a request for the appointment of a Jury to decide matters in controversy. 23-10-1958 was fixed for argument to decide if Ram Singh was entitled to jury trial. He failed to appear in the Court of the Tahsildar-Magistrate on the date fixed with the result that not only was the request for appointment of Jury rejected, but final ex parte orders were passed in the proceeding.
( 4 ) IN other words, both Kishori Lal and Ram Singh were directed to remove the encroachments by a particular date. They went up in revision, before the Additional District Magistrate, who has made the present references on two legal grounds, firstly, the Tahsildar-Magistrate did not follow the procedure laid down in Section 139a, Cr. P. C. and secondly, he had no jurisdiction to pass final orders in the proceedings. In criminal reference No. 91 of 1959 another point was also raised and which was accepted by the Additional District Magistrate, namely, that the tahsildar-Magistrate was in the wrong in passing final orders when the date was fixed merely for disposal of the application whether Ram Singh was entitled to jury trial, in other words, whether the application for appointment of Jury under Section 135 Cr. P. C. was maintainable.
( 5 ) IN both the cases the existence of public right of way was denied by opposite-parties who were alleged to have caused obstruction on public way. Section 139-A, Cr. P. C. , provides that, where an order, is made under Section 133 Cr. P. C. for the purpose of preventing obstruction to the public in the use of any way 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 or place, and if he does so, the Magistrate shall, before proceeding under Section 137; or 138, inquire into the matter. It is further laid down in Sub-section (2) that, if in such inquiry, the Magistrate finds that there is no reliable evidence in support of such denial, he shall proceed as laid down in Section 137 or secti
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