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Jagan Nath and ors. Vs. Chhitarmal and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberS.B. Criminal Reference No. 56 of 1973
Judge
Reported in1974WLN(UC)243
AppellantJagan Nath and ors.
RespondentChhitarmal and ors.
DispositionApplication allowed
Excerpt:
.....of denial of existence of public right of way--magistrate to stay proceedings.;as soon as the learned magistrate arrived at a conclusion that the evidence in support of the denial of existence of public right of way was reliable, the ought to have stayed the proceeding until the matter of the existence of such a right had been decided by a competent civil court instead of staying the proceedings she adopted a wrong procedure by sending the file to the district magistrate, jaipur, for being forwarded to the civil court. the district magistrate was not authorised under the law to forward this case to the civil court.;once she came to a decision that there was reliable evidence in support of the existence of the public right of way, she was bound to stay the proceedings pending the..........to the well through the land in question. in support of its denial of the existence of the public right, party no. 2 produced a certified copy of the judgment and decree passed in its favour by the civil judge, sambhar, on 3rd may, 1967, against the gram panchayat, hirmda and some other persons of the village. party no. 2. produced a certified copy of the judgment of the revenue court also to show that proceedings under section 91 of the land revenue act were taken and dropped against them as the state was not found to be the owner. on the basis of these two documents, it was urged by party no. 2 that the proceedings under section 133, cr.p.c. were ill-conceived and were not legally sustainable.3. the learned sub-divisional magistrate, jaipur, upon going through all the documents.....
Judgment:

Kalyan Dutt Sharma, J.

1. This is a reference made by the learned Sessions Judge, Jaipur District, Jaipur, on 10th March, 1973, with the recommendation that the orders passed by the Sub-Divisional Magistrate, Jaipur, on 21st January, 1972 and 24th October, 1972, may be set aside and the learned Magistrate may be directed to decide the matter afresh in accordance with law.

2. The relevant facts giving rise to This reference may be shortly stated as follows: Jagan Nath, Shrinarain, Dhoolchand and Ganpat, petitioners, hereinafter referred to as party No. 1, presented an application Under Section 133, Cr.P.C. before the District Magistrate, Jaipur, in the month of August, 1968, that Chhitar Mal and Anandi Lal, hereinafter referred to as party No. 2 had unlawfully obstructed their way to a well situated in village Hirnoda by constructing a muddy wall and placing thorns over it and that the unlawful obstruction should be removed from there as the well had been continuously used by all the in habitants of the village for drawing drinking water there from since long. This application was transferred to the Sub-Divisional Magistrate, Sambhar, for necessary inquiry and report. The Sub-Divisional Magistrate, Sambhar, inspected the site on 25-8-1968 and made a conditional order on 28-8-1968 requiring patty No. 2 to remove such obstruction from the way to the well. While passing the conditional order the learned Sub-Divisional Magistrate took immediate measures to prevent injury to the public by issuing an injunction restraining party No. 1 from causing any obstruction to the way pending the determination of the matter. Later on, in pursuance of this order, the thorny fencing was removed with the help of police at the instance of the learned Magistrate on 29th August, 1968. Party No. 2 there upon moved the Additional District Magistrate and thereafter the Sessions Judge for transfer of these proceedings from the court of the learned Sub-Divisional Magistrate, Sambhar to any other court of competent jurisdiction. The case was transferred by the learned Sessions Judge to the court of the Sub-Divisional Magistrate, Jaipur before which party No. 2 denied the existence of the alleged public right of way to the well through the land in question. In support of its denial of the existence of the public right, party No. 2 produced a certified copy of the judgment and decree passed in its favour by the Civil Judge, Sambhar, on 3rd May, 1967, against the Gram Panchayat, Hirmda and some other persons of the village. Party No. 2. produced a certified copy of the judgment of the revenue court also to show that proceedings Under Section 91 of the Land Revenue Act were taken and dropped against them as the State was not found to be the owner. On the basis of these two documents, it was urged by party No. 2 that the proceedings Under Section 133, Cr.P.C. were ill-conceived and were not legally sustainable.

3. The learned Sub-Divisional Magistrate, Jaipur, upon going through all the documents produced by party No. 2, came to the conclusion that the evidence in support of the denial of the existence of the public right of way was reliable and that the parties should have their rights decided by a competent civil court. The learned Magistrate, however, did not stay the proceedings Under Section 139A Cr.P.C until the matter of existence of such rights has been decided by a competent civil court, but adopted an arbitrary procedure by forwarding the record to the District Magistrate and requesting the latter to send it to a civil court. Curiously enough the District Magistrate, vide his order dated 1st September, 1972, sent the papers back to the Sub-Divisional Magistrate with a direction that the latter court had no jurisdiction of making a reference to civil court. The learned Sub-Divisional Magistrate upon receiving the record passed an order on 24th October, 1972, without giving notice to party No. 1, that the proceedings Under Section 133, Cr.P.C. may be dropped & that the possession of the land in question may be restored to party No. 2. As against This order, party No. 1, went in revision to the court of the Sessions Judge, Jaipur District, Jaipur. The learned Sessions Judge beard the revision petition and came to a decision that both the orders passed by the learned Sub Divisional Magistrate, Jaipur, on 21st January, 1972 and 24th October, 1972, were not legally correct and should be set aside by this Court. Consequently, he has made this reference.

4. I have gone through the record and heard the arguments advanced by the learned Counsel appearing on behalf of parties Nos. 1 and 2. At the outset I may observe that as soon as the learned Magistrate arrived at a conclusion that the evidence in support of the denial of existence of public right of way was reliable, she ought to have stayed the proceedings until the matter of the existence of such a right had been decided by a competent civil court. Instead of staying the proceedings she adopted a wrong procedure by sending the file to the District Magistrate, Jaipur, for being forwarded to the civil court. The District Magistrate was not authorised under the law to forward this case to the civil court. Even the learned Sub-Divisional Magistrate herself was not required to send the record to civil court. In such a case, the proper order which she could persecution was to stay the proceedings until the decision of the matter of the existence of public right of way by a competent civil court. To This extent the order of the learned Sub-Divisional Magistrate, dated 21st January, 1972, was clearly wrong and could not be sustained in the eye of law.

5. The other order passed by the learned Sub-Divisional Magistrate on 24th October, 1972, was wholly unwarranted in the circumstances of the case, because once she came to a decision that there was reliable evidence is support of the denial of the existence of the public right of way. she was bound to stay the proceedings pending the determination of the matter of existence of such right of way by the civil court. What she did was that she acted upon the direction of the District Magistrate and dropped the proceedings instead of staying them on the ground that the entire proceedings Under Section 133, and Section 142, Cr P.C. were misconceived. She was not empowered under the law to make such an order after she had arrived at a conclusion that there was reliable evidence in support of the denial of the existence of a public right of way. Curiously enough, when the learned Sub-Divisional Magistrate received the record from the District Magistrate, she did not give any notice to party No. 1 and passed the impugned order in its absence. The procedure adopted by the learned Sub-Divisional Magistrate is highly irregular and against the principles of natural justice. The order of the learned Sub-Divisional Magistrict. Jaipur, dated 24th October, 1972, is, therefore, clearly illegal and is liable to be set aside.

6. Consequently, I accept the reference made by the learned Sections Judge, Jaipur District, Jaipur, and set aside the order of the learned Sub-Divisional Magistrate dated 24th October, 1972 and direct that the proceedings shall remain stayed until the matter of existence of the public right of way to the well has been decided by a competent civil court. Party No. 1, which has moved for proceedings Under Section 133, Cr.P.C. is directed to have recourse to the civil court for establishing the public right of way within a period of two months.


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