T.N.R. Tirumalpad, J.C.
1. In this reference the question involved is whether a Magistrate before whom proceedings Under Section 133 of the Criminal Procedure Code had been started in respect of the obstruction of an alleged public pathway could ignore the provisions of Section 139A Cr. P.C. and proceed to decide the dispute between the parties straightaway Under Section 137(3) or 138 Cr. P.C.
2. The first party herein applied to the Magistrate Under Section 133(1) Cr. P.C. stating that the second party had unlawfully obstructed a public pathway leading to a tank in the village. The Magistrate thereupon asked for a report from the Surveyor. On receipt of the said report, he drew up a conditional order Under Section 133 being satisfied that a public pathway existed and that the second party had obstructed the said pathway and he called upon the second party to remove the obstruction within 15 days or to show cause against the order being made absolute.
3. Section 139A Cr. P.C., lays down the procedure to be followed by the Magistrate when the second party appeared before him in pursuance to the notice. The Magistrate had to question the second party as to whether he denied the existence of any public right in respect of the way and if he did so, the Magistrate had to enquire into the matter before he proceeded further Under Section 137 or 138. But the Magistrate did not do so in the present case. The second party when he appeared before the Magistrate put in a written statement denying the existence of any public pathway.
At least then the Magistrate could have held the enquiry contemplated Under Section 139A. But he seems to have lost sight of the Section altogether. He ordered the second party to produce evidence Under Section 137(1) Cr. P.C. It would appear that the second party did not apply Under Section 135 Cr. P.C. to appoint a jury to try the question whether the order of the Magistrate Under Section 133(1) was reasonable and proper. The Magistrate then proceeded to take the evidence adduced by the second party. At least after the evidence was adduced by the second party if the Magistrate had applied his mind to the question whether there was any reliable evidence in support of the denial of any public right in the pathway, this Court could have held that though there was error in form in the procedure of the Magistrate he had in substance complied with the provisions of Section 139A,
But the Magistrate proceeded to take the evidence of the first party also and then he came to the conclusion that there was a public pathway in the disputed place and that it was being used by the people of Sonapur village and that the second party had closed it by a fencing. He therefore made the Conditional order passed by him Under Section 133(1) absolute Under Section 137(3) Cr. P.C. and called Upon the second party to remove the obstruction within 15 days Under Section 141 Cr. P.C.
4. Two objections have been raised against the order of the Magistrate. The first one was that he failed to question the second party whether he denied the existence of the public right. I see no serious point in that objection, as the second party had filed a written statement stating that he denied the public right. In the face of the written statement denying the public right, it was not necessary for the Magistrate to ask the second party formally whether he denied the right.
5. The more serious objection raised by the Advocate for the second party is the second one namely that the Magistrate had no jurisdiction to proceed Under Section 137(1) without holding the enquiry contemplated Under Section 139A(1). The learned Govt. Advocate however pointed out that though the Magistrate had failed to hold the enquiry Under Section 139A(1) he has given every opportunity 'to both sides to let in all that evidence and that his decision Under Section 137(3) that the right of public wav existed and that the order should be made absolute was arrived at after a full consideration of the entire evidence and that the irregularity committed by the Magistrate did not materially affect his decision.
On the other hand the learned Advocate appearing for the first party argued that though his petition to the Magistrate was in form one Under Section 133(1) he was not really claiming the pathway as a public one and that the order passed by the Magistrate can be treated as one Under Section 147(2) Cr. P.C. and that therefore it was really not necessary to interfere with the finding of the Magistrate as Section 139A would not then come into play at all.
6. I may straightaway dispose of the argument advanced on behalf of the first party. His application to the Magistrate was certainly Under Section 133 and not Under Section 147. The existence of a public right in the pathway was set up by him. The Magistrate also proceeded Under Section 133. The first party cannot therefore be heard to say that his application was really Under Section 147 Cr. P. G.
7. With regard to the learned Govt. Advocate's argument in support of the order of the Magistrate, it is necessary to point out that the provision Under Section 139A is mandatory and a Magistrate has no jurisdiction to ignore the said provision and he does so his order has to be declared as a nullity, Section 139A is intended to apply to cases where a Y bona fide dispute about a public right existed. The Magistrate is given an opportunity to decide whether such a bona fide dispute existed or whether the second party's denial of the public right was a mere pretence to oust his jurisdiction. The proceedings before the Magistrate are summary proceedings.
It is intended that in such summary proceedings valuable rights of parties with regard to the land through which the alleged pathway runs should not be decided by a Magistrate, but should be left to a Civil Court for decision. So the Magistrate is directed to see whether the second party produced any reliable evidence in support of his denial of the public right. The question is not whether such evidence is conclusive or not. The very fact that in this case the Magistrate wan led the evidence of the? first party also before he could decide the question of the public right would itself indicate in a way that the second party had let in some evidence regarding his denial or the public right.
When therefore the learned Magistrate proceeded to decide the question of the public right Under Section 137(1) without applying his mind at all to the question whether the second party's denial was bona fide or not one has to hold that he acted1 without jurisdiction. It is not a mere irregularity which does not affect the jurisdiction of the Magistrate. It is clear therefore that as he has exercised a jurisdiction which is not vested in him his order passed Under Section 137(3) has got to be set aside.
8. The reference is therefore accepted and the order of the Magistrate Under Section 137(3) is set aside and he is directed to proceed afresh Under Section 139A Cr. P.C. The District Magistrate is directed to send this case for disposal to another Magistrate.