1. On a petition from the first respondent herein that the revision petitioner had recently constructed a compound wall obstructing vehicular traffic through the Ezhara road in Edak-kad amsom, the learned Executive First Class Magistrate of Tellicherry, was satisfied that emergent action was necessary and he made a conditional order under cl. (i) of Section 133, Cr.P.C' requiring the revision petitioner to remove the same obstruction or to show cause why the order should not be enforced.
2. Section 139-A (1), Cr.P.C. provides that where an order is made under Section 133, 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 and hold an inquiry; and Sub-section (2) provides 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 Section 138, Cr.P.C. If the Magistrate takes the contrary view he has to stay the proceedings until the matter is decided by a competent Civil Court. There is no doubt a technical non-compliance of Section 139-A in this case inasmuch as there was no questioning and no finding recorded that there is no reliable evidence in support of the denial of the public right. The learned Counsel for the petitioner would, therefore, argue that the entire proceedings have been vitiated and the order has to be set aside. The memorandum of revision petition shows that what is complained against is that enquiry tinder Section 137, Cr.P.C. has not been conducted.
3. In this case a written statement was filed by the revision petitioner and by the omission to put questions and record a finding under Section 139-A, no prejudice has been caused to the revision petitioner. The fact that the Executive Magistrate proceeded to record evidence under Section 137, Cr.P.C. shows that the learned Magistrate was not satisfied that there was reliable evidence in support of the denial.
4. That it is unnecessary for the Magistrate. to put any question when a party directly upon appearance has put in a statement denying the existence of any public right has been held in Ram-kripal Singh v. Superintendent Way and Works, E.I.R. Gaya AIR 1945 Pat 309.
5. Regarding non-compliance with the provisions of Section 342 Cr.P.C. in questioning of the accused, the Supreme Court in Moseb Kaka v. State of West Bengal : 1956CriLJ940 stated:
It is well recognised that a judgment is not to be set aside merely by reason of inadequate compliance with Section 342, Cr.P.C. It is settled that clear prejudice must be shown.
It is up to the accused or his counsel in such cases to satisfy the Court that such inadequate examination has resulted in miscarriage of justice.
If the counsel was unable to say that his client had in fact been prejudiced and if all that he could urge was that there was a possibility of prejudice, that was not enough.
The same principle must apply in the case of Section 139-A (1) also; that is to say, unless prejudice can be clearly demonstrated the non-questioning of the person concerned and recording a finding cannot be deemed to vitiate the Magistrate's order.
6. I am also of opinion that questioning in Section 139-A (1) is not mandatory, but is only a directory provision. In Pratap Singh v. Sri Kri-Ishna Gupta : 2SCR1029 , the Supreme Court, approving the principle enunciated by the Privy Council in Punjab Co-operative Bank Ltd. v. Commissioner of Income-tax Lahore AIR 1940 PC 230 that as a general rule an absolute enactment must be obeyed or fulfilled exactly but it was sufficient if a directory enactment be obeyed or fulfilled substantially, observed:
We deprecate this tendency towards technicality; it is the substance that counts and must take precedence over mere form. Some rules are vital and go to the root of the matter; they cannot be broken; others are only directory and a breach of them can be overlooked provided there is substantial compliance with the rules read as whole and provided no prejudice ensues; and when the legislature does not itself state which is which, judges must determine the matter, and exercising a nice discrimination, sort out one class from the other along broad-based, commonsense lines.
7. The provision in Section 139-A (1) being only directory and Magistrate having substantially complied with the law and no prejudice having been caused to the revision petitioner, the Magistrate's final order cannot be impugned.
8. That an irregularity by not following the procedure laid down under Section 139-A could be cured under Section 537, Cr.P.C. has been held in Kishorilal v. State : AIR1960All244 ; Gulab Singh v. State : AIR1960All436 and Sukh Ram Kalu Ram v. Manohar Lal Ramsaran Dass and I am in respectful agreement with the view taken in those cases.
9. Both parties knew what the finding was under Section 139-A and all available evidence had been adduced and the learned Executive First Class Magistrate had considered in detail the evidence tendered before him. I need not re-state the evidence. It is enough to say that there was sufficient material before the Court to come to the finding that unlawful obstruction was in fact caused to the way which was being used by the public.
10. Unless the finding is manifestly perverse or patently erroneous this Court will not ordinarily interfere with the findings arrived at by the Court below. The High Court will interfere in revision when there is complete paucity of evidence or when substantial injustice has been done. The learned Counsel has argued that the property over which the road runs had not vested in the public and that there was no evidence whatever that the private land of the revision petitioner had become public by any of the ways known to law and that it continues to be his private land. That the public has been using the land cannot be disputed. The order by the Executive First Class Magistrate is not a conclusive determination of the question of title and the aggrieved party has always the right to bring a suit for the determination of the question whether the land is private property or a public place.
11. For the reasons stated above, I do not find there is any room for interference in revision with the order passed by the Executive First Class Magistrate. The revision petition is dismissed. The revision Petitioner is given a month's time from this date to comply with the order of the Executive First Class Magistrate failing which he would be liable to the penalty provided for in Section 188 I.P.C. and the wall could be caused to be removed at the cost of the revision petitioner.