Skip to content


T.N. Sudhakaran and anr. Vs. E.M. George and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1973CriLJ542
AppellantT.N. Sudhakaran and anr.
RespondentE.M. George and ors.
Cases ReferredKishorilal Agarwalla v. State
Excerpt:
.....(2) of section 139-a is dealt with in joseph abraham v. alter recording the denial of the public right by the respondent the section provides that an enquiry should be conducted by the magistrate so as to see whether there is reliable evidence in support of such denial. what the magistrate is expected to do therefore, at the first stage is to see whether there is reliable evidence in support of the denial and in doing so, it should clearly be understood what would amount to 'reliable evidence' under the section. reliable evidence is the evidence of reliable persons and all that a magistrate has to satisfy himself is that the evidence produced is not false. what is meant by the section is not that the magistrate should weigh the evidence produced by both the parties and then come..........139-a(1). sub-section (2) of section 139-a shows that where the person denies the existence of any public right in respect of the river, channel, etc., the magistrate shall make an enquiry to see whether there is reliable evidence in support of such denial: and if he finds in the affirmative, he shall stay the proceedings until the matter of the existence of such right has been decided by a competent civil court. if there is no reliable evidence in support of the denial, he shall proceed under section 137 or under section 138 as the case may be. at that stage the party has the right to choose the forum as required in section 135(b) unless he is prepared to abide by the order as required by section 135(a). if the right to proceed under section 135(b) is not availed of the magistrate shall.....
Judgment:
ORDER

E.K. Moidu, J.

1. I am afraid that the procedure adopted by the Executive I-Class Magistrate, Fort Cochin, is not in accordance with law and consequently the case will have to be heard afresh.

2. On a police report or on other Information, on taking evidence if any and if the Magistrate thinks fit that any unlawful obstruction or nuisance should be removed from any way. river or channel which is or may be lawfully used by the public or from any public place (that is the complaint made in the instant case), the concerned Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, within the time to be fixed in the order, to remove such obstruction, and if he objects to do so, to appear before the Magistrate at a specified time and place to be fixed by the order and move to have the' order set aside or modified. This is the procedure to be followed to begin with under Section 133 Cr.P.C. so far as it relates to the facts of the instant case. Such a conditional order having been served on a person as provided in Section 134 Cr.P.C. he is to appear and show cause against the order when the Magistrate has to pass another order under Section 139-A(2) after following the procedure under Section 139-A(1). Sub-section (2) of Section 139-A shows that where the person denies the existence of any public right in respect of the river, channel, etc., the Magistrate shall make an enquiry to see whether there is reliable evidence in support of such denial: and if he finds in the affirmative, he shall stay the proceedings until the matter of the existence of such right has been decided by a competent Civil Court. If there is no reliable evidence in support of the denial, he shall proceed under Section 137 or under Section 138 as the case may be. At that stage the party has the right to choose the forum as required in Section 135(b) unless he is prepared to abide by the order as required by Section 135(a). If the right to proceed under Section 135(b) is not availed of the Magistrate shall proceed under Section 137; but if the party wants a jury to be constituted as required by Section 135(b) then the Magistrate shall follow the procedure under Section 138. It is only after the Magistrate passed an order under Section 139-A(2) that his right to proceed under Section 137 or 138 arises. In this case none of these provisions has been followed by the learned Magistrate.

3. Some 45 persons filed a complaint before the Magistrate on 27.3.1972. The respondents 1 to 4 in this revision petition are the signatories Nos. 1 to 4 in the complaint, wherein the allegation was that as cultivators of vast tracts of paddy lands abutting backwaters they are entitled to conduct the agricultural operations by letting in water into the canals through certain sluices from the backwaters and that therefore they must be allowed to take possession of the sluices, bunds and canals belonging to one Ayyampally Devaswom which is the jenmi of these lands, for purpose of cultivation during agricultural season with effect from 1.4.1972. The Magistrate made a conditional order on 28.3.1972 under Section 133 directing the revision-petitioners, the representatives of the Devaswom, to appear on 4.4.1972. That day being a holiday the hearing was adjourned to 11.4.1972. Even on 4.4.1972 the petitioners filed a lengthy counter-statement of their objections in which inter alia they denied that the right claimed by the respondents in respect of the sluices, bund and canal, is not a public right, but a private right. The Magistrate however, did not follow the procedure as contemplated under Section 139-A after filing the objections by the revision-petitioners. On the other hand, another order was passed on 11.4.1972 holding.

In the interest of cultivation of paddy, I consider that the operation of sluices should be entrusted to the petitioners. Accordingly, I order, as an interim arrangement that sluices, channels and mouth of the sluices should be handled by the petitioners and the key of the sluices handed over to the petitioners 1 to 4' (respondents), The revision petition is against this order.

4. The order dated 11.4.1972 was purported to have been passed under Section 142(1), Cr.P.C. But the order does not show that it was passed under that section. The learned Counsel of the petitioners contends that the Magistrate would have made the interim order dated 28.3.1972 absolute as per the order dated 11.4.1972. But in the order dated 11.4.1972 itself it is stated that it is intended only as an interim measure. The Magistrate's right to pass an interim order under Section 142(1) cannot be questioned; but he is expected to conform to the provisions of that section in passing the order. The procedure adopted by the learned Magistrate is also not in conformity with the provisions of the Code. He did not follow the procedure as provided in Section 139-A. He did not even Post the case for an enquiry to be held under Section 139-A. Neither the Magistrate had in view that a final enquiry is required to be held under Section 137 or Section 138 as the case may be.

5. In Velayudhan v. Kesavan Nair 1968 Ker LT 889 the procedure to be followed in such cases is stated as under:

A combined reading of Sections 137 and 139-A shows that there are two distinct stages in the inquiry contemplated by those sections, the first being that under Section 139-A(2) and the second that under Section 137. Entering on the second stage arises only if the party against whom the conditional order was passed defaults to adduce evidence in support of his denial of the existence of a public right. In the scheme of the inquiry the proper place for the provisions in Section 137 is after Section 139-A.

6. What is the scope of the enquiry and 'reliable evidence' referred to in Sub-section (2) of Section 139-A is dealt with in Joseph Abraham v. State 1972 Ker LT 211 : 1972 CriLJ 1459. It reads:

Alter recording the denial of the public right by the respondent the section provides that an enquiry should be conducted by the Magistrate so as to see whether there is reliable evidence in support of such denial. It is only after such inquiry and recording a finding one way or the other that the Magistrate will get jurisdiction to proceed to the next stage in the inquiry. What the Magistrate is expected to do therefore, at the first stage is to see whether there is reliable evidence in support of the denial and in doing so, it should clearly be understood what would amount to 'reliable evidence' under the section. Reliable evidence is the evidence of reliable persons and all that a Magistrate has to satisfy himself is that the evidence produced is not false. What is meant by the section is not that the Magistrate should weigh the evidence produced by both the parties and then come to the conclusion, which is more reliable or should be preferred. The object of Section 139-A is that if the denial of the public pathway involves a bona fide claim on the part of the persons denying the public right, the matter should be decided by a competent Civil Court and not by a Magistrate in a summary inquiry provided under Section 139-A.

7. So it is clear that the expression 'reliable evidence' as used in Section 139-A means evidence on which a competent court may place reliance. The expression does not mean 'evidence' which definitely establishes the right of claim. This is opposed to 'proved evidence.' Such reliable evidence does not appear to be unreliable or forged. Another decision on the point may also be seen &s; reported in Jaswant Singh v. Jagir Singh .

8. In a proceeding under Section 133, if the person proceeded against appears and shows cause against the conditional order, the Magistrate is required to take evidence in the manner as in a summons case. Under Section 139-A the Magistrate, on the appearance before him, of the person against whom the conditional order was made, has to question him as to whether he denies the existence of any public right in respect of the river or channel and if he does so, the Magistrate is required to enquire into the matter. If the Magistrate finds reliable evidence in support of such denial, he has to stay the proceedings until the existence of such right has been decided by the Civil Court. There is no scope for gratuitous hearing before proceedings under Section 133 are drawn up. Where a Magistrate, proceeding under Section 137 Cr.P.C. makes the conditional order passed under Section 133 absolute without making an enquiry under Section 139-A, although the opposite party had raised the point in their written statement that the land in dispute was not public property but was the private property, the order passed by the Magistrate would be illegal. In this case the learned I-Class Magistrate did not post the case either for an enquiry under Section 139-A or under Section 137. In such a case it is doubtful whether the Magistrate would be justified even in passing an interim order under Section 142(1).

9. It is only after the Magistrate is satisfied of the conditions mentioned in Section 142(1) that he should pass an interim order under that section. The decision cited Kishorilal Agarwalla v. State (1967) ILR 46 Pat 794 was for the proposition that without sufficient material on record a Magistrate is not bound to pass an order under Section 142(1). But it can be said that a Magistrate can pass an interim order under Section 142(1) at any stage of the enquiry, whether the enquiry is one under Section 133, or Section 139-A or Section 137 or Section 138. But he must satisfy himself that the conditions set out in Section 142(1) are fulfilled. That section shows that an order under it could be passed only if the Magistrate considers that there was an imminent danger or injury of a serious kind to the public. The Magistrate must also be satisfied that immediate measure should be taken to prevent that imminent danger or injury. The interim order so made shall be to obviate or prevent such danger or injury. Such an order is to be made pending determination of the matter. See Schedule V-Form as item XIX under Section 142, which is the Form prescribed for issuing injunction to provide against imminent danger pending enquiry by jury or otherwise. The idea for issuing in such form is to give notice to the opposite party that the interim order is passed pending enquiry of the matter. The interim order purported to have been passed in the instant case does not contain any of the materials provided for by Section 142(1). There is nothing in the impugned order to show that the Magistrate considered that there was any imminent danger or injury to the public. It is desirable in such cases for the Magistrate to state in the order itself that he issued the order under the authority of the power conferred on him in such cases under Section 142(1) Cr.P.C. The impugned order of the learned Magistrate shows that the consideration which weighed with him in passing the order was the interest of the cultivation of paddy. Though paddy cultivation is important in the matter of production of food for the good of the country, no interim order shall be passed affecting the rights of citizens during a proceeding under Section 133 unless the order is confined to the provisions of Section 142(1).

10. It is admitted that the sluices, bunds and canals vest in the Devaswom by virtue of the fact that they are the owners. If so even if the Magistrate issues an interim order under Section 142(1) it may be couched as an interim injunction restraining the revision petitioners interfering with the bunds, sluices and canals during the agricultural season from 1.4.1972 to 31.10.1972 and also directing them to make those appurtenances available to the respondents and others for agricultural operations pending enquiry of the proceedings.

11. The order of the Magistrate is not in accordance with the provisions of the Code. It has therefore to be set aside.

12. The Magistrate will restore the complaint on file and give notice to the parties to appear at a specified time and place for an enquiry in the first instance under Section 139-A, The Magistrate will also consider whether any action is necessary under Section 142(1) pending the enquiry. If so, after hearing both sides, he might pass an interim order in accordance with law under that section and in the light of the observations made above. The order is set aside and the matter is remitted to the Court below for fresh hearing. The Magistrate will give a quick disposal to the proceeding.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //