1. This rule was issued on two grounds. The first is that the procedure laid down in Section 139-A, Criminal P.C., was not followed in this case. What happened was that the petitioner was charged with obstructing a river called the Margara river by throwing earth into it and raising the land over which the water used to pass. The Magistrate issued a notice under Section 133,. Criminal P. C, on the petitioner to show cause why he should not remove this obstruction. He appeared on the data fixed for showing cause and asked for time. On the following day he filed a written statement in which he admitted that the river said to have been obstructed was a public river but that he had not obstructed it but had built his shop on the land which belonged to his zemindar. He claimed that the land over which be was charged with throwing earth and building was a part of his zemindar's khas land. The trying Magistrate thereafter proceeded under Section 137 Criminal P.C., and being of opinion that the obstruction caused by the petitioner was on the bed of a river he made the rule absolute under that section and passed an order for removal of that obstruction. No doubt Section 139-A requires the Magistrate to ask the party against whom a rule has been issued under Section 133, as soon as he appears whether he denies the existence of any public right in respect of the way river &c;, &c.;, & if he does so, the Magistrate shall proceed under Section 137 if he finds that there is no ground for such denial.
2. But in this particular case the omission by the Magistrate to comply with the section does not to my mind vitiate the entire proceeding. On the day the petitioner filed his written statement he admitted therein that the river which is said to have been obstructed was a public river ; but he contended that the obstruction which was said to have been put up was not in the river and was upon the land which was his khas land and not a portion of the river. In such cases strictly speaking, Section 139-A ought not to apply. But the language of the section is so general that I am not prepared to hold that even in such a case as this the Magistrate should not exercise a good discretion in following the direction of the law, but the omission to do it does not necessarily vitiate the entire proceeding. It would be an act of superfluity when a party comes before the Magistrate and admits the public character of the river which he is said to have obstructed to ask him whether he denies or and its its public character. This section applies only in a case where a party wants a determination of the public character of the river or way obstructed. It has been conceded on behalf of the petitioner that if on a notice under Section 133 a party appears before the Magistrate and admits that the way or river which ha is said to have obstructed is a public way or river and does not deny the existence of a public right over it but says that he has not put an obstruction in the publics way or river but has built upon his own land, Section 139-A does not apply. The present case does not seem to be in any way different from the case I hare just put. The question therefore left to the Magistrate for decision is not the existence or non-existence of a public right in the river obstructed but to determine if the obstruction was made in the river. The object with which Section 139-A was enacted seems to be that where the existence of the public right is denied the Magistrate has to make an enquiry. If it is not denied, then the section hardly seems to apply. But it any be said that the dispute between the parties is whether the land over which the obstruction is made is part of a public river and thus attracts the application of Section 139-A. Even if it be so, when the petitioner appeared before the Magistrate and denied that it was part of the public river, there was no necessity for putting a formal question to him and the subsequent procedure followed by the Magistrate was as indicated in the Clause 2 of that section, and the final order passed was Under Section 137 since the obstruction was admitted. The omission at the most is an irregularity which is covered by Section 537, Criminal P.C.
3. The second ground relied upon by the petitioner is that the order of the Magistrate is vague and incapable of being carried out. The Magistrate passed an order for removal of the obstruction from a particular settlement dag, namely, dag No. 2,573 which is well-definei in the settlement record ; and when notice was served upon the petitioner to show cause under Section 133, Criminal P.C., he did not object on the ground of vagueness of the notice. This ground is suggested by certain remarks made by the learned Sessions Judge to whom an application was made by the petitioner under Section 435, Criminal P.C. The learned Judge suggested that in cases like the present the best procedure was to appoint an ameen to relay the site which would give clear indication to the opposite party as to the extent and nature of the obstruction. This was merely a piece of advice given to the trial Court which might help it in enforcing its order, if necessary. There doe3 not seem to be any vagueness in the order passed in this case and both the grounds having failed, in my opinion this rule shall be discharged.
4. I agree.