Cri. Misc. No. 7831 of 1986

28th February, 1992.

Petitioner Counsel: M/s Wasi Akhtar, Farooque Moazzam and Anisur Rahman, for Opposite Parties

Cases Cited:
1984 Cri LJ 300 [Para 29]
1974 Pat LJ R 261 [Para 9]
1973 Pat LJR 390 [Para 28]
1972 BLJR 699 [Para 9]
1972 BLJR VII (Journal Section) [Para 28]
1970 Cri LJ 833,AIR 1970 Pat 207 [Para 28]
1959 Cri LJ 230,AIR 1959 Pat 81 [Para 27]
1941 (42) Cri LJ 34,AIR 1941 Pat 38 [Para 26]

JUDGMENT

S. B. SINHA, J. :-In this application, the petitioner has prayed for quashing of an order dated 29-3-1986 passed by Sri J. C. Das, Executive Magistrate, Sahebganj in T.R. Case No. 52/85, whereby and whereunder a proceeding under Section 133 of the Code of Criminal Procedure, 1973 was initiated.

2. The fact of the matter lies in a very narrow compass.

3. On 11-12-1984, a petition was filed by the opposite parties alleging inter alia therein that the land situate adjacent west to house of the petitioner was a passage bearing plot No. 704 and the same is connected with the public road through a lane bearing plot No. 706. Allegedly, the petitioner made encroachments upon the aforementioned plot Nos. 704 and 706, as a result whereof, an obstruction on the aforementioned lands and road has been created. A copy of the said application is contained in Annexure 1 to this application.

4. By an order dated 3-6-1985, the Sub-divisional Magistrate transferred the case to the court of J. C. Das, Executive Magistrate, Sahebganj. The petitioner filed a show cause alleging therein that he had not made any encroachment upon any portion of the road and, he had constructed a plat form more than 20 years back, wherefor he allegedly had been paying plat form tax to the Municipality in terms of the provisions of Bihar and Orissa Municipal Act.

5. It was further alleged that the purported land in plot No. 706 was a private land and the same had all along been exclusively used for passage by the petitioner and his family members and in relation thereto, the opposite parties or any other persons had no right, title and interest.

6. It was further stated that plot Nos. 704 and 706 are not public lands.

7. By an order dated 5-11-1985, the learned court below directed the Executive Officer, Sahebganj Municipality to hold an inquiry, but although, no report was submitted, by an order dated 29-3-1986 upon a prayer made by the opposite parties, notices were directed to be issued under S. 133 of the Code of Criminal Procedure in Form No. 20 appended to the schedule of the Code of Criminal Procedure, pursuant whereof a notice dated 7-4-1986 which is contained in Annexure 2 to this application was issued.

8. According to the petitioner, the said notice does not conform to the provisions of law inasmuch as it had not been stated as to what was the cause of obstruction or nuisance, nor the substance of the matter as envisaged under clauses (a) to (f) of Sub-Sec. (1) of S. 133 of the Code of Criminal Procedure had been mentioned.

9. This case was listed before a learned single Judge far admission, on which date it was conceded that the Executive Magistrate had the power to pass an order, but it was contended that in view of a decision of this Court in Chandra Bhushan Prasad Singh v. Tungnath Misser, reported in 1974 PLJR 261 and in Sarwan Kumar Sharma v. Raghunandan Sao, reported in 1973 PLJR 390, the enquiry should have been confirmed to the

show cause without any rebuttal and/or cross-examination of the witnesses examined on behalf of the petitioner by the opposite parties.

10. It was submitted that before proceeding with the case, further, the court could not have adopted the procedure laid down under S. 138 of the Code of Criminal Procedure without holding an enquiry as envisaged under S. 137(2) thereto.

However, it was alternatively submitted that if the Sub-divisional Magistrate is said to have been holding an enquiry in terms of S. 137 of the Code of Criminal Procedure, he should have proceeded ex parte.

11. The learned single Judge being unable to reconcile his view with the aforementioned two decisions, referred the matter to division bench for hearing.

12. Mr. Rajiv Sharma, the learned counsel appearing on behalf of the petitioner, has raised two contention in support of this application.

The learned counsel firstly submitted that from a perusal of the notice as contained in Annexure 2 to the application, it would appear that the same is absolutely vague and does not conform to the requirements of law as provided for in different clauses contained in Sub-Section (1) of S. 133 of the Code of Criminal Procedure.

13. It was next contended that in any view of the matter as the petitioner denied the existence of any public path, the court was bound to hold an ex parte enquiry in terms of the provisions as contained in S. 137 of the Code of Criminal Procedure. The learned counsel further took us through the petition and rejoinder to the counter affidavit of the opposite parties and submitted that the said proceeding is an abuse of process of the court.

14. Mr. Wasi Akhtar, the learned counsel appearing on behalf of the opposite parties, on the other hand, submitted that the petitioner was not at all prejudiced by reason of the alleged vagueness of the notice as he has filed a show cause in pursuance thereof.

15. The learned counsel, however, could not controvert that in the event existence of public right as such is denied by a proceedee, the court is bound to hold an enquiry as envisaged under S. 137(2) of the Code of Criminal Procedure.

16. Notice to show cause is issued in order to enable a proceedee to file an effective show cause. The petitioner had all along been aware of the allegations made in the application for initiation of a proceeding under S. 133 of the Code of Criminal Procedure filed by the opposite parties.

17. As indicated hereinbefore, the petitioner had already filed a show cause and thereafter the order dated 29-3-1986 was passed in pursuance whereof a notice in form 20 was directed to be issued.

18. There is no doubt that the said notice dated 7-4-1985 as contained in Annexure 2 to the application does not conform to the requirements of law, but it is also evident from the materials on record that the petitioner despite vagueness of the said notice understood that his case comes within the purview of clause (a) of Sub-Sec. (1) of S. 133 of the Code of Criminal Procedure and filed his show cause accordingly. The petitioner even in his show cause did not state that in view of vagueness of the notice, he had in any way been prejudiced. Such a question has been raised before this Court for the first time.

19. In this view of the matter, we are of the view that the petitioner has not been prejudiced at all by reason of alleged vagueness in the said notice dated 7-4-1986.

20. Section 133(1) of the Code of Criminal Procedure provides for passing of a conditional order for removal of nuisance in the event a case falls within one or the other clauses of (a) to (f) thereof. While passing such a conditional order, an opportunity has to be given to the proceedee to file his show cause in the matter.

21. Section 137 of the Code of Criminal Procedure provides that if the proceedee denies the existence of a public right, the magistrate has to hold an enquiry before proceeding in terms of S. 138 of the Code of Criminal Procedure.

22. Sub-Sec. (2) of S. 137 of the Code of Criminal Procedure reads as follows :-

"(2) If in such inquiry the magistrate finds that there is any reliable evidence in support of such denial, he shall stay the proceedings until the matter of the existence of such right has been decided by a competent Civil Court, and if he finds that there is no such evidence, he shall proceed as laid down in S. 138."

23. The provisions of Section 138 of the Code of Criminal Procedure comes into play only in the event it is found by the Magistrate that there does not exist any evidence in support of the denial of existence of public right on the part of the proceedee.

24. From a plain reading of the aforementioned provisions, it is absolutely clear that the executive magistrate before taking recourse to the procedures laid down under S. 138 of the Code of Criminal Procedure must comply with the provisions contained in S. 137 thereof. The said provision is imperative in nature.

25. It is further evident that the enquiry contemplated under S. 137 of the Code of Criminal Procedure is in the nature of a preliminary enquiry.

26. In Rukmini Raman v. Heredeo Mandal, reported in AIR 1970 Patna 207 : (1970 Cri LJ 833), a learned single Judge of this Court held as follows (at page 835) :

"It is contended on behalf of the first party (Opposite Party) that the order should not be set aside merely because the Magistrate did not comply with the provisions of S. 139A of the Code. That however, is to overlook the whole object of the provisions of that Section. It has been held in Munilal Agrawala v. Public of Bhagalpur, AIR 1941 Pat 38 : 1941 (42) Cri LJ 34 by Agarwala J. (as he then was) that those provisions are clearly designed to show that where there is a reliable evidence in support of the denial of the existence of the public right, the Magistrate shall have no jurisdiction to pronounce on the cogency of that evidence, but to refer the matter to the civil Court. This view is also supported by a Bench decision of this Court in the case of Darsan Ram v. State, AIR 1959 Pat 81 : (1959 Cri LJ 230). It has been held in that case that in a case falling under S. 139A, it is imperative for the Magistrate, first, to hold an enquiry as laid down therein before he proceeds under S. 137 or S. 138 of the Code, as the case may be. The Magistrate gets jurisdiction to continue the proceeding after an enquiry held in accordance with S. 139A. The enquiry envisaged in S. 139A is in the nature of an ex parte summary enquiry and what the Magistrate is to see is whether there is a prima facie reliable evidence in support of the denial and not that the non-existence of the public right should be affirmatively proved."

27. In Sobhi Lal Mahton alias Sobhit Mahton v. State of Bihar, reported in 1972 BLJR page vii, it has been held that it is not necessary that a party denying existence of a public right may give conclusive evidence, but what is required of him is to produce reliable evidence so as to enable the Executive Magistrate to prima facie satisfy himself that there is some substantial basis of the claim of the person denying the existence of a public right.

28. In Sarwan Kumar Sharma v. Raghunandan Sao, reported in 1973 PLJR 390, it has been held that where existence of a public right is denial, the Magistrate has no jurisdiction to proceed further in the matter unless an enquiry as contemplated under S. 139A of the old Code of Criminal Procedure is held. In that decision also this Court relied upon a Division Bench decision of this Court in Darsan Ram v. The State, reported in AIR 1959 Patna 81 and Sobhi Lal Mahton's case (supra).

The same view has been taken by another Division Bench decision of this Court in

Munshi Gope v. Ragho Prasad Singh, reported in 1972 BLJR 699 and by a learned single Judge of this Court in Chandra Bhushan Prasad Singh v. Tungnath Misser, reported in 1974 PLJR 261.

29. In Brahmdeo Singh v. Indradeo Singh, reported in 1984 Cri LJ 300, this Court has reiterated the same view.

30. In view of the aforementioned long line of decision of this Court, there cannot be any doubt that the learned Executive Magistrate has committed an illegality in proceeding to hold an enquiry in terms of S. 138 of the Code of Criminal Procedure.

31. However, so far as the submission of Mr. Sharma to the effect that the said proceeding is an abuse of the process of court is concerned, we are of the view that it is not necessary to express any opinion at this stage inasmuch as the petitioner either in the enquiry under Sub-Section (2) of S. 137 of the Code of Criminal Procedure or under S. 138 thereof can place all the materials on records so as to enable the learned Magistrate to consider the same and arrive at a decision in accordance with law.

32. This application is, therefore, allowed to the aforementioned extent and the matter is remitted to the court below for proceeding in accordance with law keeping in view the directions given hereinbefore.

However, in the facts and circumstances of this case, there will be no order as to costs.

33. S. N. JHA, J. :-I agree.

Order Accordingly