Decided on January 13,1975


Referred Judgements :-


Cited Judgements :-



- (1.)THE second party in a proceeding under section 133 of the old Code of Criminal Procedure, 1898 to be hereafter called the Code, is petitioner before me. Ashutosh Sashmal and others, the opposite parties in this rule filed a mass petition before Revenue minister of the Government. The said petition was enquired into and a report submitted to the Sub-divisional executive Magistrate, Uluberia. Reading that report the learned Sub-divisional executive Magistrate has drawn up a proceeding under section 133 of the Code and, has served a copy of his order on the petitioner requiring him to appear before "himself" on 3. 7. 73 and to move to have his order set aside or modified or to show why the order shall not be enforced. The petitioner appeared before the said Sub-Divisional executive Magistrate on 3. 7. 73 applied for time and was granted time upto 10. 7. 73. The learned Sub-divisional executive Magistrate by the same order of that date transferred the case to the file of Sri M. C. Sengupta, a Magistrate with 2nd Class power, for favour of disposal on 10. 7. 73, the petitioner appeared before the said transferee magistrate, Sri Sengupta, and filed show cause. He fixed 25. 5. 73 for hearing. On 23. 8. 73 he examined four witnesses in chief. There was no cross-examination of the witnesses that day. He fixed another date for cross-examination. On 15. 11. 73 three of the witnesses examined in chief were cross-examined. The remaining fourth witness was cross-examined on 22. 11. 73 arguments were heard on that date and the Magistrate fixed 8. 12. 73 for orders. On that date he has made the following order. "i therefore, endorse that the order dated 22. 6. 73 of the Sub-divisional Magistrate, is made absolute and be enforced and direct 2nd party u/s. 144 cr. P. C. (?) to demolish and remove the structure or portion of the struction on plot No. 1526 of Khatian No. 316 within mouza Ajodhya J. L. No. 71 adjoining the Hume-pipe towards removal of the obstruction within fifteen days from this date and report compliance, failing which it will be performed and he will be penalised provided under the Act in force".
(2.)THE petitioner moved the Sessions judge against that order. The Sessions judge has rejected that application in the view that the revisional application does not lie before him He has rejected the petition in limini without going into the merits. The petitioner has moved this Court in the revision under section 401 of the new code of Criminal Procedure 1974.
(3.)TO appreciate the contentions made in this case a short summary of the facts of the case may be given : bimala Devi was the owner of R. S. Dag No. 1526. She sold it to the petitioner on 21. 5. 68 and put him in possession. The petitioner raised the level of the land and is residing therewith his family making a pucca structure on it. Ashutosh Sashmal and others in their mass petition stated that there is a public drain to the east of R. S. Dag no. 1526 and that the petitioner has obstructed it by raising pucca structure on its mohana (mouth ). The petitioner in showing case before Sri Sengupta stated that there is no public drain and that he has not obstructed it by a construction on its mohana. The learned sub-Divisional Executive Magistrate has drawn up a proceeding under section 133 of the Code being satisfied that the petitioner has, by making a unlawful construction, obstructed a public drain (channel) and free flow of water through it from the paddy fields of several Mou as and has made a conditional order requiring him to remove the said obstruction by demolishing his structure. He has shown cause against the order. The learned magistrate has made an order under section 137 of the Code making the earlier order of the Sub-divisional Judicial magistrate absolute. The procedure adopted by the Magistrate in disposing of the matter is challenged as illegal contending that it has been made in disregard of the mandatory provisions of the Code. When a proceeding under section 133 of the Code is drawn up in respect of an alleged obstruction to the public in the use of any channel the Magistrate is required to make two enquiries to determine, firstly, whether or not there is existence of a public right in respect of the channel and secondly, whether or not there has been obstruction caused on the said channel regarding the use of it by the public. The first enquiry has been enjoined by sub-section (1) of section 139a and the second enquiry is required to be held under section 137 or section 139. In the second enquiry under section 137 or 139 the procedure to be adopted is that prescribed for a summons case under chapter 20 of the code. In the first enquiry no particular procedure has been prescribed or specified under section 139a (1 ). It is clear on a reading of the sections 133, 134, 135, 136 and 139a that a Magistrate has not and cannot commence an enquiry under section 137 in case of an obstruction in the use of a public channel before concluding the enquiry under section 139 (A) and before reaching a conclusion under sub-section 2 of that section. In the instant case, the learned Magistrate, Sri Sengupta has made only one enquiry in which he has taken the evidence of the second party and has, on that, decided both the questions-one coming under section 139a (1) and the other under section 137. This, it is submitted, has vitiated, the entire proceeding and has made the ultimate order illegal. This contention should be accepted. Before a Magistrate is satisfied after enquiry that there is no reliable evidence in support of the denial of the second party of the existence of the public right in respect of the channel, he cannot proceed to take evidence under section 137. It is clear that evidence to be given under section 137 is to come from the party, who alleges obstruction to the use by the public of the channel. The second party may give evidence disproving the existence of the obstruction only after the first party has given his evidence to prove its existence. The learned Magistrate in the instant case has adopted a procedure, which is not sanctioned by the provisions of the Section 139a and section 137, and has made the entire proceeding illegal by not calling upon the first party to prove the existence of the obstruction said to be existing in respect of the public channel. The departure from the procedure provided by the Code is an illegality and has vitiated the entire proceeding. The application will succeed on this ground.

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