Decided on February 03,1961



- (1.) THIS Rule must be made absolute. It appears that a proceeding under section 133 of the Code of Criminal Procedure has been started against the petitioner. Before the proceeding was actually drawn up a preliminary hearing took place at which the petitioner denied the existence of public right. Obviously the petitioner relied on the provisions of section 139a of the Code of Criminal Procedure. The Magistrate not having followed the procedure correctly, time was wasted by permitting the parties to produce evidence at what has been characterized as a preliminary hearing. Section 133 enjoins that when any unlawful obstruction is caused in a public place or in public way, the Magistrate mentioned in section 133 may make a conditional order requiring the person causing such obstruction or nuisance, to remove it or if he objects so to do, to appear before himself or some other Magistrate at a stated time and place and move to have the order set aside or modified in the manner provided in the chapter. If such person does not perform the act directed to be done or appear to show cause or apply for the appointment of a jury he should be adjudged to penalty prescribed in section 188 of the Indian Penal Code and the conditional order must be made absolute. If the person proceeded against appears and shows cause against the order, the Magistrate is required to take evidence in the matter as in a summons case. Then follows section 139a which provides that the Magistrate shall on the appearance before him of the person against whom the conditional order was made, question him as to whether he denies the existence of any public right in respect of the way or place, and if he does so, the Magistrate is required to enquire into the matter. If the Magistrate holding the enquiry finds reliable evidence in support of such denial, he has to stay the proceedings until the existence of such right has been decided by the Civil Court. When a person has failed to deny the existence of a public right or having made such denial, has failed to adduce reliable evidence, the Magistrate is required to complete the enquiry and make the order absolute.
(2.) THIS in brief is the procedure to be adopted by the Magistrate. There is no scope for gratuitous hearing which seems to have been afforded to the parties and which obviously has caused considerable misapprehension. The result is that the petitioner now complains that he has been denied the right which the law gives him of asserting that the members of the public have no right of way. As I have said there has been confusion with the consequence that the proceedings have been held up.
(3.) IN the result, the Rule is made absolute. The Magistrate directed to proceed in accordance with the provisions of the law as indicated above. As I have said the petitioner must be given opportunity of denying the existence of public right and the procedure to be followed is one envisaged in section 139a of the Code.;

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