CIT KERALA Vs. VITTAL NAYAK AND CO
HIGH COURT OF KERALA
VITTAL NAYAK AND CO
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(1.) I am afraid that the procedure adopted by the executive First Class Magistrate is erroneous, and consequently, the matter will have to be heard afresh.
(2.) I shall indicate the procedure to be followed in a petition under S. 133 of the Code of Criminal Procedure. After the receipt of the police report or other information and on taking such evidence as the magistrate thinks fit, he may make a conditional order requiring the person causing such obstruction, nuisance, etc. , to remove it and also to appear before him or some other magistrate at a time and place to be fixed by the order and move to have the order set aside or modified (S. 133 ). After such conditional order is served on the person in the manner provided for service of summons (see S. 134) and when the person appears in pursuance of the order and shows cause against the same, the magistrate has to pass orders under S. 139a. Sub-section 2 of that section (earlier part) lays down that where the person denies the existence of any public right in respect of the way, etc. , the magistrate shall make an enquiry to see whether there is reliable evidence in support of such denial; and if he finds in the affirmative, he shall stay the proceedings until the matter of the existence of such a right has been decided by a competent civil court. On the other hand, if the magistrate finds that there is no reliable evidence in support of the denial, he shall proceed either under S. 137 or under S. 138 as the case may be (see latter part of S. 139a (2) ). It is at this stage when the magistrate finds that there is no reliable evidence in support of the denial, the right to apply for the appointment of a jury arises (S. 135 (b) ). If the person does not apply for the appointment of a jury, then the magistrate shall proceed under S 137; and if the person applies for a jury, the magistrate shall proceed under S. 138. This right to choose whether the proceedings should continue under S. 137 or S. 138 can arise only when the Magistrate passes an order under the latter part of sub-section 2 of s. 139a. In this case, no such order appears to have been passed by the executive First Class Magistrate, so that the counsel of the petitioner is right in his contention that the petitioner was not given the opportunity to choose the procedure as contemplated by S. 135 (b) of the Code. The Sessions Judge has also failed to appreciate this.
I do not think 1 need refer to any decision in support of the procedure pointed out by me: at any rate, I shall refer to the decision pointed out by the counsel of the petitioner in Lal Behari De v. Jatindra chandra De AIR. 1949 Cal. 57.
The revision petition is therefore allowed; and the final order passed by the Executive First Class Magistrate and confirmed in revision by the Sessions Judge is set aside. The matter is remitted to the executive First Class Magistrate for proceeding afresh as indicated in this order. The magistrate will first consider whether the evidence produced by the petitioner (the litho plan) is reliable evidence in support of his denial of the right of way; and if she thinks that the plan is such reliable evidence, she will stay the proceedings as contemplated by the first part of sub-section 2 of S. 139a of the Code of Criminal Procedure until the existence of such right has been decided by a competent civil court. On the other hand, if she finds that the litho plan is not sufficient reliable evidence to pass an order under the first part of sub-section 2, then she will pass an order to that effect under the latter part of that sub-section, so that the petitioner might thereafter choose under S. 135 (b) as to whether he wants the procedure under s. 137 or under S. 138. The Executive First Class Magistrate is directed to proceed as indicated above. Allowed.;
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