Rajvi Roop Singh, J.C.
1. This is a Criminal Reference made by the learned Sessions Judge, Tripura, with a recommendation for setting aside the order dated 4-5-64 passed by the Magistrate First Class, Belonia, in Criminal Misc. Case No. 12 of 1963.
2. The facts giving rise to this reference are that on 22-4-63, the opposite party, Aswini Kumar Choudhury as 1st party filed a petition before the Sub-Divisional Magistrate, Belonia with the contention that in the current year he had grown Bajal and Aush paddy in 8 kanis of land owned and possessed by him and appertaining to jote No. 21 of Mouja Radhakeshoreganja under Belonia Tahashil that there is a very old cherra lying to the south of this land and the second party members Jogendra Kumar Das and Kali Mohan Das have wrongfully constructed a bundh on the said cherra about 5/6 days back and obstructed the water and that as a result of that the crop standing in the entire 8 kanis of land has been destroyed therefore, immediate steps be taken to cut down the bundh for the drainage of water. On receipt of the petition the learned Magistrate directed the O/C., Belonia Police Station to submit report. On 3-5-63, the 0/C. submitted the report and the learned Magistrate after going through it passed an order for drawing up the proceedings under Section 133 Cr. P.C. against the second party members asking them to clear the public water passage within 5 days.
The second party members on being served with the notice appeared and filed written statement. Their case was that the bundh in question was not either on any cherra or public water passage, but it was on dhepa land owned and possessed by the second party members appertaining to jote No. 52 of mouja Radhakeshoreganja under Belonia Tahashil. Thereupon the learned Magistrate passed an order that he would visit the spot as prayed for by both the parties on 1-6-63. Thereafter, on 8-9-63, the learned Magistrate visited the locality personally and made a memorandum of facts observed by the inspection and gave copies thereof to the parties. Thereafter, on 4-3-64, 5 witnesses on behalf of the second party members were examined by the learned Magistrate. Thereafter, the case was fixed for 18-3-64 for arguments. On 24-4-64 he heard arguments and on 4-5-64 he passed the impugned order as follows:
I do hereby make the order, dated 3-5-453 as absolute. Issue notice upon the second party members to clear up the water passage by removing the bundh from dag No. 654 within 30 days from to-day, on failure of which the second party members will be liable to penalty provided under Section 188 I.P.C.
3. Being aggrieved with this order of the learned Magistrate, the petitioners filed revision petition to the Court of learned Sessions Judge and he has made this reference for setting aside the impugned order of the learned Magistrate.
4. At the time of arguments none appeared on behalf of the petitioners to support the reference. The Learned Counsel for the opposite party appeared and opposed the reference.
5. The sole contention advanced on behalf of the counsel for the opposite party was that in this case, while following the procedure, the learned Magistrate has committed irregularity and not illegality and hence the order should not be quashed. He further averred that in these days of the shortage of food grains if the learned Magistrate had not removed the bundh, in that case the crop standing on 5/6 drones of land would have been destroyed. The Magistrate keeping in view of the loss of the food grains passed the order, therefore, this order should not be set aside. It was also averred that the proceedings under this Section are summary and are intended to enable the Magistrate to summarily deal with cases of urgency or of imminent danger to the public interest. This was a case of danger to the public interest, therefore, even if the learned Magistrate committed some irregularity this order should not be set aside.
6. On the perusal of the record of the case and the recommendation made by the learned Sessions Judge, I find that these contentions advanced by the Learned Counsel for the petitioners are without any merit. From the record it is obvious that the second party members filed the written statement denying the existence of any public right of water passage at the place where they constructed the bundh, therefore, it was mandatory for the learned Magistrate under Sub-Section(1) of Section 139-A Cr. P. C, to make an enquiry into the question of existence of public right in such a case and thereafter he should have followed the procedure mentioned in Sub-Section(2) of Section 139-A Cr. P.C. In this case the learned Magistrate examined 5 witnesses on behalf of the second party members after they had filed the written statement denying the existence of any public right of water passage at the place where they constructed the bundh. But the learned Magistrate has not recorded any finding as to whether there is any reliable evidence in support of such denial. If he had found that there is such evidence, then it would have been his duty to stay the proceedings. The learned Magistrate has not done that. He has also not found that there is no such evidence. From the record, it is also clear that the learned Magistrate has neither complied with the provisions of Section 139-A (2), nor taken any evidence as required under Section 137(1) Cr. P.C. order dated 4-5-64, making the order, drawing up proceedings under Section 133, Cr. P.C. absolute, has been passed in contravention of the above provisions of law and as such illegal. I am, therefore, constrained to accept the reference.
7. The reference is accepted and the order of the learned Magistrate dated 4-5-64 is set aside and the learned Magistrate is directed to proceed with the case according to the provisions of Sub-section (2) of Section 139-A