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Kartika Ram Vs. Jagannath Misra and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in29(1963)CLT523; 1964CriLJ248
AppellantKartika Ram
RespondentJagannath Misra and ors.
Cases ReferredDarsan Ram v. State
Excerpt:
.....lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - the magistrate thereupon called upon both parties to file their documents, heard them in full and after innumerable adjournments spread over several years at last disposed of the matter by a final order dated 1-2-1962. he has come to a clear finding as to whether there was any reliable evidence in support of the denial of the public right of way, as required by sub-section (2) o section 139-a criminal procedure code. it is the right of a party against whom a preliminary notice under section 133 criminal procedure code is issued to show that further proceedings should not be taken if he can adduce reliable stridence in support of his denial of the public right over the path in question and the..........rasta in cuttack town which is causing nuisance to the public. proceedings under section 133 criminal procedure code were initiated on 16-7-1958 and usual notice was served on the petitioner. he entered appearance on 11-10-58 and denied the public right of way over the plot in question and urged that an enquiry under section 139-a criminal procedure code should be held. the magistrate thereupon called upon both parties to file their documents, heard them in full and after innumerable adjournments spread over several years at last disposed of the matter by a final order dated 1-2-1962. he has come to a clear finding as to whether there was any reliable evidence in support of the denial of the public right of way, as required by sub-section (2) o section 139-a criminal procedure.....
Judgment:
ORDER

R.L. Narasimham, C.J.

1. This is a revision by the second party against a final order Under Section 133 Criminal Procedure Code passed by the S. D. O., Cut-tack -Seder directing him to remove a Kutcha construction said to have been made by him on a public rasta in Cuttack town which is causing nuisance to the public. Proceedings Under Section 133 Criminal Procedure Code were initiated on 16-7-1958 and usual notice was served on the petitioner. He entered appearance on 11-10-58 and denied the public right of way over the plot in question and urged that an enquiry Under Section 139-A Criminal Procedure Code should be held. The Magistrate thereupon called upon both parties to file their documents, heard them in full and after innumerable adjournments spread over several years at last disposed of the matter by a final order dated 1-2-1962. He has come to a clear finding as to whether there was any reliable evidence in support of the denial of the public right of way, as required by Sub-section (2) o Section 139-A Criminal Procedure Code. The order-sheet also does not show that on any of these innumerable dates the Magistrate was aware of the fundamental difference between the enquiry Under Section 139-A Criminal Procedure Code on the one hand and the enquiry Under Section 137 Criminal Procedure Code on the other. Apparently he mixed up the enquiries under both the sections and passed one composite order.

2. The order of the Magistrate cannot be supported. It is the right of a party against whom a preliminary notice Under Section 133 Criminal Procedure Code is issued to show that further proceedings should not be taken if he can adduce reliable stridence in support of his denial of the public right over the path in question and the Magistrate must come to a finding on this point before he can proceed with the enquiry Under Section 137, Criminal Procedure Code.

3. Mr. Misra did not challenge the correctness of the legal position, but urged that though more than three years elapsed from the date of appearance of the petitioner on 11-10-58, he never objected to the magistrate continuing the proceeding and dad not remind him about the necessity of holding an enquiry Under Section 139-A Criminal Procedure Code. He therefore urged that at this belated stage the proceeding should not be quashed and further enquiry ordered. There would have been some force in his contention if the order-sheet on any of the dates of adjournments showed that the Magistrate dispensed with the enquiry Under Section 139-A and continued the proceeding Under Section 137, and the petitioner being aware of this allowed the Magistrate to continue the proceeding Under Section 137 Criminal Procedure Code and also examined witnesses on his behalf. No such conclusive inference can however be drawn from a scrutiny of the order-sheet of those dames. It may be {bat the petitioner was also under a mistaken impression that the entire evidence was being taken for the limited purpose of enquiry Under Section 139-A, and only when the final order was passed on 1-2-1962, that he was aware that the proceedings had been concluded Under Section 137 Criminal Procedure Code.

4. Mr. Misra also relied on a recent Division Bench decision reported in Darsan Ram v. State : AIR1959Pat81 where it was held that an enquiry Under Section 139-A Criminal Procedure Code was of an ex parte summary nature and urged that as in this case both' parties were fully heard it must be presumed that the petitioner was aware that the enquiry was held Under Section 137 and not Under Section 139-A,

5. No such presumption can however be made unless there is some evidence on record to show that the petitioner was aware of the principle laid' down in : AIR1959Pat81 . Merely because the Magistrate directed both parties to adduce evidence it cannot be inferred that the petitioner must have been aware that the enquiry was really being held Under Section 137 and not Under Section 139-A, Criminal Procedure Code. Even an enquiry Under Section 139-A cannot necessarily b ex parte, because the party (here the Opposite Party) on whose application the proceeding Under Section 133 Criminal Procedure Code was initiated' would always be in attendance. Hence when the petitioner denied the right of public way over the-path in question and wanted to show that the evidence in support of such denial was reliable, the-rival party would be entitled to show that such' evidence was not reliable. This can be done either by cross examining the witnesses of the petitioner or by adducing evidence on his own behalf. Hence, with great respect I am not inclined to wholly endorse the observations in : AIR1959Pat81 to the effect that an enquiry Under Section 139-A Criminal Procedure Code would be ex parte.

6. In subsequent enquiry Under Section 137 the sole question for consideration by the Magistrate is whether the cause shown by the petitioner against the preliminary order directing him to remove the obstruction is reasonable and proper. For that purpose he will have to decide whether in fact there was obstruction and whether such obstruction should be removed. This enquiry would undoubtedly be held in the presence of both parties and it cannot be said to be an enquiry of a limited nature as one Under Section 139-A Criminal Procedure Code. But the mandatory provisions of Section 139-A cannot be ignored as a mere irregularity.

7. For these reasons I set aside the final order of the Magistrate dated 1-2-62, restore the proceeding to the stage at which it was on 11-10-58 on which date the petitioner entered appearance and denied the public right over the path in question, and direct the Magistrate to proceed with the case and dispose of it according to law. As the matter is pending for a long time further proceedings should be expedited.


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