S. Murtaza Fazl Ali, J.
1. This is an application against an order of the Sessions Judge Srinagar setting aside an order of discharge passed by the trial Court and directing further inquiry into the case.
2. The complainant opposite party filed a complaint Under Sections 341 and 506 of the Ranbii Penal Code against the petitioner and others alleging that on 16-9-1959 when the complainant along with certain friends wanted to enter into the 'Sehan' through the door marked 'B' in the site plan, he found that the door was being closed by the accused with nails; and the complainant was thus prevented from proceeding through that door. The complainant protested and the accused are alleged to have told him that he would not be allowed a passage through the door and that if he would try to obstruct or interfere, he would be killed. The complainant then went to his house through an alternative route and filed a complaint on 17-9-1959.
The accused were tried by the City Munsifi Magistrate 1st Class Srinagar who by his order dated 28-10-1961 discharged the accused on the ground that the complainant had not been able to provd a right of way through the door in question and. that the dispute was of a civil nature. The learned-magistrate further held that the evidence regarding, giving of threats was discrepant and could not be relied upon. It appears that before the case was decided by the magistrate, an application for transfer was filed in the High Court by the opposite party which was dismissed. After taking the evidence produced by the prosecution the Magistrate adjourned the case to 8-11-1961 for arguments. In the mean time an application was given to the Magistrate by the accused that arguments may be heard: earlier than the date fixed because his counsel would be going to Jammu in connection with the Durbar Move and would not be able to argue the-case on 8-11-1961.
The learned Magistrate issued a notice on this application and got it served on the complainant who refused to accept notice. On the other hand, the complainant appeared before the Court and prayed for time to file another application for transfer of the case from the file of the trial Magistrate. The Magistrate, however, refused to give time and' heard arguments on that date and announced his-order. Against this order of the magistrate a revision was taken to the Sessions Judge Srinagar who without going into the merits of the case, set asid the order of the magistrate on the ground that the order was passed without giving an opportunity to the complainant to argue his case. It is against this order of the Sessions Judge Srinagar that the-petitioners have come up in revision before me.
3. Normally a Court of revision does not enteric into tacts but having regard to the peculiar circurrtr stances of the cage, and particularly to the fact that the case is really a very old one and the Sessions Judge did not choose to enter into the merits-of the case, I allowed the parties to go into the facts and place the entire evidence before me, in order to show whether or not a case for framing charges against the accused was made out. Learni ed counsel for the petitioners submitted that there is no provision in the Code of Criminal Procedure under which it is incumbent on the Magistrate to hear the complainant before framing charge against the accused. It is true that there is no such provision but in the interest of fairness of trial and in accordance with the principles of natural justice, it has always been laid down that a magistrate ...should hear both the parties before proceeding to frame charges against the accused. There can be no doubt that the magistrate acted in hot haste in hearing the case even before the date already fixed by him and particularly in the tetra-of opposition by the complainant. Since I have decided to enter into the merits of the case, and allowed parties a complete opportunity to address me on the entire evidence, the order of the magistrate cannot be set' aside merely on the ground that the complainant was not heard.
4. Coming now to the facts of the case, it -seems to me that the allegations made in the complaint disclose more or less a civil dispute and the complainant was ill advised to choose the forum of a criminal Court to vindicate his grievances. 1 would first take up the allegations with respect to the offence Under Section 341 of the Ranbir Penal Code. Section 339 of the Ranbir Penal Code which defines wrongful restraint runs as follows:
Whoever voluntarily obstructs any person be as to prevent that person from proceeding in any direction in which that-person has a right to proceed, is said wrongfully to restrain that person.
Exception : The obstruction of a private way over land or water which a person in good faith belftves himself to have a lawful right to obstruct, is not an offence within the meaning of this section.
In order to prove the facts constituting an offence under this section the following ingredients must be established:
i) That there is an obstruction.
ii) That the obstruction prevents; a person from proceeding in any direction,
iii) That the person so proceeding must have -a right to proceed in the direction concerned.
5. The Exception lays down that where the obstruction is made in good faith and the accused believes himself to have a lawful right to obstruct, mo offence is committed.
6. It is, therefore, clear that before the accused can be convicted under this section, the prosecution must prove that the complainant had a right to proceed in a particular direction or that he had a right of way. It may be noted that the Statute has used the word 'right' and not 'license'. Thus the complainant must prove a right of way before he can complain of an obstruction by the accused. In the instant case the admitted position is that the complainant had only purchased 1/10 of the house where the door is situated and the accused had purchased girth of it. Thus the accused are the ma] 01 co-sharers of 'the house and the 'Sehan' into which the door opens.
According to the allegations made in the complaint, the complainant has purposely not indicated the right of the accused in the house. He has come out with a case that the door existed since a very long time and was being used by the complainant. In the evidence, however, the complainant clearly admits that before the purchase he was msing the way only with the permission of the previous owners-the vendors of the accused and the complainant, and that too with an oral permission. The complainant further admits that he was using the door as an exit only because he was the Mutabar of the previous owners and was required to watch the house. This statement clearly shows that the complainant had no right of way to use the door but it was only a license given to him by the previous owners which came to an end after the sale in favour of the accused and the complainant. The complainant further admits in his evidence that the door was opened only for the last three to four years and that he was using it during this time.
P. W. 8 Abdul Rehman who is a neighbour of -the complainant admits in his evidence that the accused also had a right of entry through that door and that the tenants of the house used the door in dispute. The witness further says that he was not in a position to say whether the complainant had a right to use the door. P. W. 9 who is also a resident of the Mohalla says that the door was opened by the complainant only since his purchase, P. W. 11 Ahmed Din has admitted that the door was a joint door through which both the accused and the complainant had a right to pass. These are the only witnesses who have stated something about the right of the complainant to use the door in question. The other witnesses have not said anything in particular about the right which the complainant had with respect to the door. The evidence of these witnesses, therefore, clearly shows that any right that the complainant had did not mature or ripen into an easement. Similarly the evidence of these witnesses further shows that the accused also being a major co-sharer had a right to pass through that door. In this view of the matter, if the accused closed the door under a bona fide belief that they as the major co-sharers of the house were entitled to the exclusive use of the door which actually opened into their 'Sehan', it cannot be said that the obstruction was one as contemplated by Section 339 of the Ranbir Penal Code.
It is well settled that in cases where both the parties set up a right of way or easement, the matter can best be decided in a civil court rather than a criminal court. I am fortified in my view by a decision of the Assam High Court, reported in Belutnani Nath v. Ramesh Chandra AIR 1950 Assam 83 where Ram Labhaya J. while dealing with the matter at length has observed as follows:
It appears that the complainant claims a private right of way. The dispute evidently can be more appropriately decided by the civil court. The likelihood or at least the possibility of a bona fide belief in the mind of the accused that they had the right to stop the pathway as it was passing on their land cannot be entirely excluded. Section 339 Penal Code, which defines wrongful restraint provides an exception to the principle embodied in the section. The exception is to the effect that the obstruction of private way over the land or water which person in good faith believes himself to have a lawful right to obstruct, is not an offence within the meaning of this section....
To the same effect are the decisions reported in: Sm. Sovarani Roy v. The King : AIR1950Cal157 ; Prava Debi v. Santi Ram AIR 1949 Cal 112; Samrath Bai v. Emperor AIR 1918 Bom 256 and Kali Das Raha v. Deodhari Mistri AIR 1925 Cal 1214.
7. In these circumstances, therefore, on the evidence led by the prosecution the magistrate was fully justified in holding that the dispute between the parties was more or less a civil dispute and could not have been entertained by a criminal court.
8. Mr. Kak, appearing for the complainant submitted that the evidence of the complainant and the other witnesses referred to above, did show that the complainant had some sort of right to use the door and even if both the accused and the complainant had a right to the use of the door, the accused were not justified in closing the door and denying the complainant's right of entry through the door. The answer to this argument can be furnished by the exception to Section 339 of the Ranbir Penal Code quoted above. The evidence clearly shows that there was a reasonable basis for the accused to have been under a bona fide belief that having purchased 9/10th of the property, they had the exclusive right of entry to the door which opens into the 'Sehan' of the accused. Once this is found to have, been established even by the prosecution evidence no offence Under Section 341 of the Ranbir Penal Code could be said to have been committed. Moreover, as I have already indicated, the evidence of the prosecution is not at all clear as to whether the right exercised by the complainant was a right as envisaged by Section 339 of the Ranbir Penal Code or it was mere a license, as admitted by the complainant himself. For these reasons, I am unable to accept the contention of Mr. Kak on this point.
9. I would now come to the allegations with respect to offence Under Section 506 of the Ranbir Penal Code. Before an offence under this section is made out, it must be established that the accused had an intention to cause an alarm to the complainant. The evidence of P. W. Nos. 1, 2, 3, 4, 5, 6, 7, 8, g, 10 and n clearly establishes that when the complainant wanted the accused to open the door and asserted his right to do so it was then only that the threats were used. Thus the threats were given to the complainant not with an intention to alarm him but with a view to deterring him from interfering with what the accused believed to be his exclusive right of passage through the door in question. Thus the intention of the accused not being to alarm the complainant the essential ingredient of an offence Under Section 506 R. P. C. is wholly wanting. Moreover, even on merits, it cannot be said that a prima facie case for framing charges Under Section 506 R. P. C. is made out.
The learned trial magistrate was right in pointing out that the evidence on this point was both vague and discrepant. Some of the witnesses stated that all the accused uttered the threats while some of the witnesses state that the threats were uttered from inside the door in which case the witnesses -would not have been in a position to identify the particular accused who used the threats. There are other set of witnesses like P. W. 7 Abdul Rehman coo of Mohamad Shaban and P. W. n Ahmed Din who clearly .stated that no threat to kill was given by the accused but they only asserted their right to dose the door. In view of this discrepant evidence, it cannot be said that an offence Under Section 506 R. P. C. was established even prima facie.
10. On a careful consideration of the evidence and circumstances of the case I am clearly of the Opinion, that the order of the Magistrate was fully Justified on the merits of the case.
11. For the reasons given above, the application is allowed, the order of the Sessions Judge Srinagar directing further inquiry is set aside and the order passed by the Magistrate discharging the accused is upheld.