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Shri Ram Kishore and anr. Vs. State - Court Judgment

LegalCrystal Citation
CourtHimachal Pradesh High Court
Decided On
Reported in1973CriLJ1527
AppellantShri Ram Kishore and anr.
Cases ReferredMt. Ram Kali v. Kripa Shankar
- .....before the magistrate and when they were questioned as to whether they denied the existence of any public right over the chabutra, they very much affirmed that they did deny it. the learned magistrate then proceeded to enquire the matter under section 139-a. after considering the evidence adduced by the petitioners, the magistrate was of the opinion that there was no reliable evidence in support of such denial of public right. he, therefore, directed the petitioners to appear before him for further proceedings under section 137.2. against the order of the learned magistrate, the petitioners came up in revision before the sessions judge, nahan but they did not succeed. the learned sessions judge also considered that the magistrate had even decided the case under section 137 and,.....

D.B. Lal, J.

1. This rule in revision has been obtained in a case under Section 133 of the Criminal Procedure Code, pending before the Sub-Divisional Magistrate, Nahan. The facts of the case are, that the petitioners Ram Kishore and Jai Kishore claim ownership for khasra No. 942 which is an open piece of land situate in Chhota Chowk, within the town of Nahan. On one side of this land which is a Chabutra, there is a Haveli which at one stage belonged to Lala Bansi Lal who constructed a temple on the Chabutra for the use of the public. The three sides of Chabutra were left open for the public to traverse as they used to go to perform Puja etc. within the temple; on the occasion of Gugga Naumi, the members of the public assemble on this Chabutra and celebrate the festival for a period of 8 or 9 days and that is an annual function. Lala Bansi Lai fell in debts and the disputed property was purchased by the bank in public auction and the ancestors of the petitioners re-purchased the property from the bank. It appears the petitioners wanted to make some construction over the Chabutra and, therefore, they stacked some bricks and thereby obstructed the passages to the public from two sides, which gave rise to the present dispute. The S. H. O., of the Police Station, Nahan, accordingly submitted his report dated 22nd April, 1971 to the Magistrate who considered it and issued a preliminary order under Section 133 (1), Criminal Procedure Code calling upon the petitioners either to remove the obstruction or if they objected so to do, to appear and show cause why the order should not be made absolute. The petitioners accordingly appeared before the Magistrate and when they were questioned as to whether they denied the existence of any public right over the Chabutra, they very much affirmed that they did deny it. The learned Magistrate then proceeded to enquire the matter under Section 139-A. After considering the evidence adduced by the petitioners, the Magistrate was of the opinion that there was no reliable evidence in support of such denial of public right. He, therefore, directed the petitioners to appear before him for further proceedings under Section 137.

2. Against the order of the learned Magistrate, the petitioners came up in revision before the Sessions Judge, Nahan but they did not succeed. The learned Sessions Judge also considered that the Magistrate had even decided the case under Section 137 and, therefore, according to him no further proceedings were required to be taken up. In other words the learned Sessions Judge considered that the preliminary order had become absolute and an order to that effect could immediately be made by the Magistrate.

3. Feeling aggrieved by the order of the learned Sessions Judge, the petitioners have come up in a further revision before this Court. The learned Counsel for the petitioners contended in the foremost that neither the Chabutra could be considered a public place nor any unlawful obstruction has been made on it by the petitioner. It is undisputed that Lala Bansi Lai was the owner of the disputed Chabutra. When he constructed the temple which was open to the public there was a presumption that he conferred the temple property as public property. It is admitted on all hands that the public had a free access to the temple for performing Puja etc. The necessary inference is that a passage for going upto the temple was also there in the use of the public. This passage goes over the Chabutra which is open from three sides. If the petitioners obstructed two of the sides of the Chabutra, they had necessarily caused obstruction in the exercise of a public right over a public place. It is true that private property cannot be treated as public, merely because a section of the public have enjoyed permissible user over it. But from the character of the land an inference is to be derived that the owner had intended to make over the same to the public to exercise their right of passage upto the temple. The expression 'public place' is not defined in the Criminal Procedure Code or in the Penal Code. In Queen v. Wellard, (1884) 14 QBD 63, Grove, J., laid down that a public place 'is a place where the public go, no matter whether they have a right to go or not' and this definition has been accepted by subsequent judicial decisions both in India and in England. A place in order to be public, must, therefore, be open to the public i.e., a place to which the public have access by right, permission, usage or otherwise. Where a court finds that a temple has stood for a long time and worship is performed in it by the public, it is open to the court to infer that the building does not stand there merely by the leave or license of the owner of the site, but that the land itself is a dedicated property and the site is a consecrated land, and is no longer the private property of the original owner. (See Mini y. Ramgopal AIR 1935 All 891). Similarly in another case in re Muthuswami Iyer AIR 1937 Mad 286 : (38 Cri LJ 588) it was held that a place where the public are in habit of going is a public place. To a similar effect is the case State of Kerala v. Che-rian Secariah : AIR1967Ker106 . It was also observed in this case that to constitute 'public place' it is not necessary that the place should be a public property but if it is private property it must be proved that not only public could have access to it but it is a place to which, members of public in fact resort. Therefore, it is absolutely immaterial that Lala Bansi Lai or his successors-in-interest, namely, the petitioners are private owners of the Chabutra. When it is undisputed that the members of public have a right to pass over the Chabutra for worship in the temple and also hold festival of Gugga Naumi over it for 8 or 9 days every year, it is not difficult to hold that even though the Chabutra is a private property the public does exercise defined rights, over it and as such the Chabutra is a public place.

4. At one stage the learned Counsel for the petitioner even argued that he would not deny the existence of public right but would certainly submit that any obstruction to such public right was not unlawful. The learned Counsel reinforced his argument by saying that the petitioners had a right to exclude others whenever they wished and as such the obstruction was not unlawful. It was required of the petitioners to produce reliable evidence before the learned Magistrate to prove prima facie that they had a right to exclude the members of the public at any time they liked from entering over the land. But for this there was no iota of evidence before the learned Magistrate. Whatever evidence was produced related to the mutation entry which existed in favour of the petitioner, a few rent receipts obtained from casual sitters over the Chabutra and some agreements obtained during the pendency of the proceedings from some persons who were permitted to keep Nishan etc., of the Devta during the period of Gugga Naumi celebration. It appears, from recent years, the petitioners have started creating evidence of exclusive possession in their favour. Nevertheless not one instance could be shown when the public was really excluded from exercising their rights over the Chabutra. The persons who were permitted to sit with their shops over the Chabutra, decidedly did not obstruct the passage and their shops were really meant to facilitate the visitors. The mutation entry would be of no avail because that will only prove that the petitioners were the owners of the Chabutra. There was some controversy as to whether Khasra No. 942 was included in the sale deed and a capital seems to have been made out of it by the courts below. In my opinion that piece of evidence of whatever nature it is, is not material so much, to arrive at a decision as to whether the place was a public place and as to whether a public right existed over it. As I have stated before, even if Khasra No. 942 was deemed included in the sale deed and was inadvertently left out as submitted by the petitioners, that would not give them any right to deny public usage or public right which in fact existed over the Chabutra for considerable time in the past. Therefore, upon the very evidence adduced by the petitioners a right in their favour to exclude the public from exercising its rights was not established.

5. It would also be useful to consider as to what would constitute 'reliable evidence' for the consideration of magistrate under Section 139-A. 'Reliable evidence' in the sense in which the term is used in this section only means evidence on which it is possible for a competent court to place reliance. It does not mean evidence which definitely establishes the title to the land, because if that was the meaning of the term it would be unnecessary in any case to refer the matter to the Civil Court. In my opinion the duty of the Magistrate under Section 139-A was merely to see whether the denial of public right was made on frivolous grounds. There was no evidence before the learned Magistrate to indicate that the petitioners ever exercised their right to exclude others from visiting the Chabutra for the purpose of worship either in the temple or during the occasion of Gugga Naumi. In that contingency the inference drawn by the learned Magistrate that there was no reliable evidence in support of the denial of public right appears to be unassailable. It could not be stated that on the face of the evidence as it stood, it was not difficult for the magistrate to hold that there could be a successful denial of the public right. There was no exclusion of public at any time before and only recently the petitioners or their predecessors-in-interest have started getting receipts for shops etc., or agreements from persons to create evidence of exclusive possession. They have also stacked the bricks and possibly want to make some construction. That has given rise to the present dispute. The witnesses produced by the petitioners very much affrm that the public was freely exercising its rights over the land. It is also contended by the learned Counsel for the petitioners that even now no obstruction is caused to the public. When they have stacked bricks on two sides of the Chabutra, the land is not open for access by the public on these two sides. The obstruction is obviously there and Section 133 could be invoked.

6. The two courts below have relied upon certain facts, that the Chabutra was used by the public for going upto the temple and for performing the festival of Gugga Naumi, that no obstruction was caused by the petitioners or their predecessors-in-title till recently to the public going there and exercising these rights and that the petitioners have now stacked bricks and that has caused obstruction to the public in the exercise of its rights. The findings of facts arrived at in the courts below cannot be interfered with in revisional jurisdiction. For this there is ample authority and I need only refer to Narayan Tewary v. State of West Bengal : AIR1954SC726 . When the Trial Court has dealt with the matter fully and was satisfied with the evidence produced that no reliable evidence existed in support of such denial it would not be proper for the High Court to interfere in that finding of fact which was alsof affirmed by the learned Sessions Judge.

7. The learned Counsel for the petitioner relied upon Mt. Ram Kali v. Kripa Shankar AIR 1933 All 615 : (35 Cri LJ 4) and quoted to his advantage the following passage:-

I do not suggest that the jurisdiction of the Criminal Court is ousted by the fact that a person proceeded against is the owner of the land, but, at any rate, the fact of ownership is a very solid fact, and in the majority of cases will undoubtedly provide 'reliable evidence' within the meaning of Clause (2) to Section 139-A in the absence of very cogent evidence, on the other side.

8. The said observation was made by the learned Judge in the special circumstances of that case where the right of way was claimed which did not find mention in the revenue records and hence it was held that public right was not established. In such a case the proof of ownership of land was considered reliable evidence to deny the public right of way. In the case before me the property being private, nevertheless was uniformly used by the members of the public and certain defined rights were exercised from long time in the past. Therefore, the above noted decision will be of no avail to the petitioners.

9. The learned Counsel argued at some length on the principles of dedication and lost grant and submitted that facts were not proved to prove a customary right or easement. It is to be understood that the criminal courts were not called upon to decide questions of title and hence they need not have gone into these intricate questions of law or fact. Nor can I be understood to mean that I am deciding these rights either in favour of or against the petitioners. According to my findings public rights were exercised over the land in dispute. Therefore, it was a public place and the rights exercised over it are public rights. The petitioners could not adduce any evidence whatsoever before the learned Magistrate to substantiate the plea of their right to exclude the members of public at any time from exercising such rights. Rather they have very much affirmed that the public, at all time, exercised such right and no obstruction was caused except now by the stacking of bricks. No doubt the festival of Gugga Naumi cannot be held over the heap of bricks or within the constructed portion over the Chabu-tra. All this decidedly justified the learned magistrate to give a finding that reliable evidence did not exist in support of denial of such public right.

10. The learned Sessions Judge, it seems, has failed to appreciate that a decision under Section 137 is still open and has not been arrived at. It would be wrong to state that the order of the learned magistrate had become final and the preliminary order could be made absolute. Rather the learned magistrate has only decided that no reliable evidence in support of such denial of public right existed and, therefore, a reference to civil court was not required under Section 139-A. As provided in the section itself the learned magistrate shall now proceed with the case as laid down in Section 137. The learned Sessions Judge has definitely erred in making his observations otherwise.

11. In the result I do not find any substance in the revision and dismiss the petition. The order of the learned Magistrate dated 17-2-1972 is upheld and the record shall be sent back to him for furthej proceedings under Section 137 Criminal Procedure Code.

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