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N.M. Swamy Vs. State and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai High Court
Decided On
Judge
Reported in1971CriLJ1255
AppellantN.M. Swamy
RespondentState and anr.
Cases ReferredDarsan Ram v. State
Excerpt:
.....follow the procedure in section 137 only in the event of his giving an express finding that there is no reliable evidence in support of such denial of the existence of any public right in the cart-track by the petitioner......on the road which is lawfully used by the public, the petitioner denied the existence of any public right in respect of the road. it transpires from the records that the case was thereafter adjourned for the purpose ol taking evidence and examination of witnesses. the learned magistrate examined five witnesses as p. ws. in support of the stand taken by the state. the petitioner was questioned about the depositions given by the prosecution witnesses, p. ws. 1 to 5. the petitioner examined d. ws. 1 and 2.3. the first class magistrate, after noticing that the place where the well is sunk is the private patta land of the petitioner, finds on the strength of exhibits that the prosecution has established that there is a road from malrozapuram to karunilam and that it is maintained by the.....
Judgment:
ORDER

K.N. Mudaliyar, J.

1. The petitioner is the owner of the patta lands in Survey Nos. 481, 482, 483 and 477 in Sengundram village. Survey No. 401 alone is a grazing ground poromboke. The grievance of the State is that the petitioner obstructed the public cart-track which goes from Malrozapuram to Karunilam by the petitioner's causing public nuisance in that he placed 'Velikathan thorns' and dug a well in the said public cart-track. The said cart track is reported to pass through Survey Nos. 481, 482, 483, 477, 476, 475, 474, 473, 472, 471, 470. 469, 468, 467, 466 and 401 of Sengundram village.

2. On 10-3-1969 the petitioner appeared before the court of the Executive First Class Magistrate, Chingleput in response to a conditional order, issued Under Section 133 (1), Criminal P.C. When the petitioner was required to desist from causing such obstruction to the general public on the road which is lawfully used by the public, the petitioner denied the existence of any public right in respect of the road. It transpires from the records that the case was thereafter adjourned for the purpose ol taking evidence and examination of witnesses. The learned Magistrate examined five witnesses as P. Ws. in support of the stand taken by the State. The petitioner was questioned about the depositions given by the prosecution witnesses, P. Ws. 1 to 5. The petitioner examined D. Ws. 1 and 2.

3. The First Class Magistrate, after noticing that the place where the well is sunk is the private patta land of the petitioner, finds on the strength of Exhibits that the prosecution has established that there is a road from Malrozapuram to Karunilam and that it is maintained by the Village Panchayai and that it has been repaired and levelled etc, by the use of grader belonging to the Highways department and that the necessary estimates have been sanctioned by the Panchayat authority for the formation of the road, construction of culverts etc. This aspect of the evidence has not been seriously challenged by the petitioner either. During the trial, the Magistrate gave a finding in favour of the State about the existence of the said road and about its proper maintenance. But the trial Magistrate notices that no sanction was obtained from the counter petitioner for forming the road, as in the case of Ex. P. 5, when written consent was obtained from Mr. Koman I. C. S. The First Class Magistrate went to the extent of observing as follows: 'The mere fact that no written consent was obtained from the counter petitioner before the road was formed through his lands does not take away the right of the public at this juncture, to use the road which is now vested in the Panchayat and is maintained by it.' He has also taken into consideration from the evidence on xe cord, the fact that the petitioner has not objected to the formation of the road originally, that funds were sanctioned by the Collector and the works were executed through Block Agency like construction of culverts, etc. about ten years ago. The trial Magistrate ultimately found that the long user by the public both as public road or way, as established by the prosecution, raised the presumption of relinquishment by the .petitioner of the right over it. The trial Magistrate made a conditional order requiring the petitioner to desist from causing such obstruction to the general public on the said road which is lawfully used by the public by law, Under Section 137 (3) of the Criminal Procedure Code.

4. The learned Counsel for the petitioner attacked the propriety or correctness of this order principally on the ground that the enquiry conducted and the order passed by the Magistrate are absolutely without jurisdiction, particularly in the light of the terms of Section 139-A (1) and (2) which are extracted here below:

Section 139-A (1): Where an order is made Under Section 133 for the purpose of preventing obstruction, nuisance or -danger to the public in the use of any way. river channel or place, 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 in respect of the way, river, channel or place, and if he does so, the Magistrate shall, before proceeding Under Section 137 or Section 138, inquire into the matter.

Section 139-A (2): If in such inquiry the Magistrate finds that there is any reliable evidence in support of such denial, he shall stay the proceedings until the matter of the existence of such right has been decided by a competent civil court; and if he finds that there is no such evidence, he shall proceed as laid down in Section 137 or Section 138, as the case may require.

Section 139-A would make it clear that when the petitioner appeared on 10-3-1969 to show cause against the conditional order issued Under Section 133(1), Cri. P.C. he denied the existence of any public right in respect of the cart-track along the road. When the petitioner denied the existence of any public right in respect of the said road, the Magistrate has one statutory duty to fulfil and that is to enquire into the matter. The phrase 'enquire into the matter' is so comprehensive that this must necessarily relate to the denial of the existence of any public right in respect of the road by the petitioner. In such an enquiry, the Magistrate may find:

(1) that there is any reliable evidence in support of such denial by the petitioner, in which case, there is a mandatory interdiction that the proceedings shall be stayed until the matter of the existence of such a right has been decided by a competent civil court; and

(2) if the Magistrate finds that there is no such evidence, he shall proceed to take evidence in the matter as a summons case Under Section 137, Criminal P.C. and follow the procedure as laid down Under Section 137. Criminal P.C.

5. The First Class Magistrate has erred in straightway resorting to the provisions of Section 137 in lieu of his conducting an enquiry for the limited purpose of finding any reliable evidence in support of the denial, of the petitioner After confining himself to such an enquiry for the determination on the question whether there is any reliable evidence in support of such denial or not. he may thereafter proceed to follow the procedure in Section 137 only in the event of his giving an express finding that there is no reliable evidence in support of such denial of the existence of any public right in the cart-track by the petitioner. Thus the trial Magistrate has jumbled up the procedure which he ought to have followed Under Section 139-A (1) and (2) with the procedure in Section 137. Criminal P.C. The proceedings Under Section 137 without following the procedure in Section 139 are totally opposed to law and the proceedings, resulting in the finding noticed by me, are wholly without jurisdiction I am fortified in my conclusion by the rationale found in the two judgments reported in A.I.R. 1939 Mad 465 (Govinda Govindan v. Ayi Gounden) and also Srikantiah v. H, A. Bhojaraj reported in 1963 MLJ 266. The learned Counsel for the petitioner cited another authority reported in Darsan Ram v. State reported in : AIR1959Pat81 .

6. I am afraid the trial Magistrate has- wholly misdirected himself in permitting both the parties to adduce evidence by a .totally wrong understanding of the provisions of Section 139-A (1) and (2) and Section 137, Criminal P.C. The proceedings in M. C. No. 4 of 1969 and the consequential order in the ultimate paragraph of the order of the learned Magistrate are set aside and the entire matter is remanded to the District Magistrate (Judicial), Chingleput for fresh enquiry. The findings of the Executive First Class, Magistrate cannot be construed as trammelling the judicial discretion of the District Magistrate in weighing the evidence before him and coming to his own independent conclusion.


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