TYAGI, J. -
(1.) ZINSI has filed this revision application challenging the order of the learned sub-Divisional Magistrate, Gangapur dated 13th June, in a proceeding under chapter X of the Code of Criminal Procedure which was upheld by the learned Additional Sessions Judge, Gangapur, by his order dated 27th August, 1966.
(2.) A complaint was lodged by Rampal and seven others in the court of the Sub-Divisional Magistrate, Gangapur, alleging that Zinsi and his eight associates have obstructed the public way by making a pucca construction and that the petitioners were left with no other way to take their cattle to their fields and well with the result that their standing crops are likely to be destroyed. It was also alleged that there was likelihood of breach of peace if the obstruction had not been removed by the court. The complaint was sent by the learned Magistrate for enquiry to the police and on receipt of a report from the Station House Officer, notices were issued under sec. 133 Criminal Procedure Code on 7th January, 1966, requiring Zinsi and eight others to remove the obstruction and to show cause why the provisional order may not be made absolute. Out of nine opposite parties, only Zinsi filed his objection to the provisional order issued by the court, and pleaded that before he made the construction pucca there was a kutcha construction for a long time and that there was no public way through the place where the construction has been raised by him. Three witnesses were produced by Zinsi in support of his case. The learned Magistrate went to inspect the site and, thereafter the Patwari of the village was examined by him. Both the parties were, however, afforded an opportunity to cross-examine the Patwari who was probably examined by the Magistrate as a court witness. After considering the material brought on the record, the learned Magistrate by his order dated 13th June, 1966, made his provisional order absolute and required Zinsi to remove the construction from the place which was found to be public way by the learned Magistrate. Zinsi filed a revision application against the said order of the learned Magistrate in the court of the Additional Sessions Judge, Gangapur, who, after hearing both the parties, upheld the impugned order of the trial court. It is in this manner that this second revision application has been filed by Zinsi to assail the orders of the two courts below.
Mr. Garg appearing on behalf of the petitioner has challenged the order of the Magistrate, mainly on two grounds, namely, (i) that the trial court has exceeded its jurisdiction by allowing the witnesses produced by Zinsi in support of his denial of the existence of public way to be cross-examined by the opposite party, and (2) that the learned Magistrate had no jurisdiction to examine the Patwari as a court witness and on the basis of that statement of the Patwari it could not discard the evidence of the petitioner declaring it as unreliable evidence. Learned counsel also pointed out that the order of the Panchayat, on which reliance has been placed by the trial court was under appeal and, therefore, that order of the Panchayat declaring the place where construction was made by the petitioner as a public way could not be used as an evidence to discredit the testimony of the witnesses produced by Zinsi.
Learned counsel for the opposite party, on the contrary, urged that even if the order of the Panchayat and the statement of the Patwari are overlooked by the Court, there is ample evidence on the record to show that the denial of public way made by Zinsi has no ring of truth about it as Zinsi himself in his previous statement recorded by the Panchayat had admitted the existence of the public way. That statement is Ex. P. 1 on the file. It was also urged that the provisions of sec. 139-A of the Code of Criminal Procedure do not put any fetters on the jurisdiction of the court to examine any person as a court witness if it was found necessary in the interest of justice to examine such a person and, therefore, the statement of the Patwari has been rightly pressed into service by the learned trial court.
In order to resolve the controversies raised by learned counsel for the parties, it shall be relevant to examine the scheme of Chapter X of the Code. S. 133 lays down that whenever a District Magistrate, Sub-Divisional Magistrate or a Magistrate of the first class considers, on receiving a police report or other information and on taking such evidence as he thinks fit, that any unlawful obstructions or nuisance should be removed from any way that may be lawfully used by the public such Magistrate may make a conditional order requring the person causing such obstruction or nuisance, within the time to be specified in the order, to remove it and he may also require that person to appear before him or before some other Magistrate to show cause why the conditional order may not be made absolute and such a person may file his objections before the Magistrate to get the order set aside or modified. The person against whom the provisional order is made has a right to deny the existence of any public way and if he chooses to do so, then he would apply to the Magistrate by whom the order was made (See S. 135 ). U/s. 139a procedure is prescribed for taking further proceedings in the matter if the existence of a public right is denied by a person against whom the provisional order is issued, and the requirement of this section is that if such a right is denied by the person concerned then the Magistrate shall, before making an order u/s. J 37, enquire into the matter. Sub-sec. (2) of this section further requires that if the Magistrate in such an enquiry finds that there is any reliable evidence in support of the denial, he shall stay the proceedings until the matter of the existence of such right has been decided by a competent civil court; but if he finds that there is no such reliable evidence available on the record, then he shall proceed in accordance with the provisions of s. 137. Sec. 137 requires that if a person against whom provisional order has been issued by the Magistrate appears and shows cause against the order, the Magistrate shall take evidence in the matter as in a summons case and if he is satisfied that the provisional order was not reasonable and proper, he will vacate it, but if he is not so satisfied then he will make the provisional order absolute.
From the aforesaid provisions of this Chapter, it appears that when the public right is denied by a person against whom a provisional order under sec. 133 is issued by the Magistrate, then it is imperative for the Magistrate under sec. 139-A of the Code to first hold an enquiry before he proceeds to make the order absolute. The question that arises in this case is as to what is the scope of an enquiry under sec. 139 A of the Code. According to Mr. Garg, the scope of the enquiry under the provisions of sec. 139-A is very limited and it is only an exparte enquiry to find out whether the aggrieved party has produced a reliable and legal evidence in support of his denial and if the Magistrate on the perusal of that evidence is of opinion that the evidence is reliable, then he cannot take any further proceedings and it is incumbent on the Magistrate to direct the parties immediately to take the matter to the Civil Court to get their dispute adjudicated by it. According to Mr. Garg, the Magistrate has no jurisdiction to examine any witness as a court witness and then use that evidence to find out whether the evidence produced by the party aggrieved is reliable or not. In support of this contention, he placed reliance on two Patna cases in Sukh Lal Gope vs. Satyadeo Prasad (1) and Darsan Ram vs. The State (2 ).
I very carefully perused these two judgments of the Patna High Court. According to these judgments, the nature of the enquiry envisaged in sec. 139-A is of an ex parte summary enquiry and what the Magistrate, according to the learned Judges, is to see is whether there is a prima facie reliable evidence in support of the denial and not that the non-existence of the public right should be affirmatively proved and, therefore, it is not the duty of the Magistrate to take the evidence of both the sides and then to judge if the party against whom the order has been made has succeeded in establishing the non-existence of the public right and if the evidence adduced by the party against whom the order is made is legal and reliable then there is an end of the matter and the Magistrate cannot but stay his hands and refer the parties to the civil court. As far as the scope of enquiry under sec. 139-A of the Code is concerned, I think, these two authorities cited by learned counsel for the petitioner lay down the correct law, but in these two cases this question was never raised before the learned Judges that the Magistrate had no jurisdiction to summon a witness and examine him under sec. 540 of the Code of Criminal Procedure and, therefore, these authorities are of tittle avail to the petitioner to successfully challenge the correctness of the order of the learned Magistrate on the ground that the Court had no jurisdiction to examine the Patwari and then declare the evidence of the petitioner as unreliable for the purpose of the denial of the public way.
Under sec. 540 of the Code of Criminal Procedure a very wide power has been given to a court that it can at any stage of any enquiry or trial summon or examine anybody as a court witness. Sec. 139-A of the Code does not create any bar for a Magistrate to exercise the power conferred by sec. 540. The Legislature has not prescribed any mode of enquiry which must be followed while exercising the jurisdiction under sec. 139-A of the Code. In my opinion, no fetters have been imposed by the Legislature on a Magistrate under sec. 139-A Criminal Procedure Code as to how he should conduct the enquiry except such as can be inferred from the purpose for which an enquiry is intended. Under the provision of sec. 139-A, the duty is some reliable evidence in support of the denial and for that purpose the Magistrate may allow the witnesses called in support of the denial to be cross-examined by the opposite parties in order to find out the veracity of the statements that they are required to depose before the Magistrate. In order to arrive at the conclusion whether the evidence produced by the party in support of his denial is reliable or not, the Magistrate can use all those powers which have been conferred on him by the Code in order to find out the truth about the fact for which he has launched the enquiry. Sec. 540 of the Code of Criminal Procedure is one of the powers which has been given to the courts in all enquiries, trials or criminal proceedings under the Code to summon and examine a witness as a court witness and I do not think that the provisions of sec. 139-A in any manner circumscribe the exercise of this power which the Legislature has in its wisdom, conferred in the interest of justice on the courts to examine court witnesses. I find support for this proposition of law from Kishorimohan Pramanik vs. Krishnabihari Basak (3) where the learned Judges have observed that "there is nothing in sec. 139-A which can exclude the exercise of the Court's powers under sec. 540. "
In Buddha Rai vs. Emperor (4) the enquiry conducted by the Magistrate under sec. 139-A was challenged on the ground that during the course of enquiry the Magistrate permitted the opposite party to cross-examine the witnesses adduced by the party against whom provisional order was issued. While discussing the scope of enquiry under sec. 139-A of the Code, the learned Judge observed as follows: "nothing is laid down in the Code as to the form which the inquiry under sec. 139-A should take and no restrictions are imposed on the discretion of the Magistrate as to how he should conduct the inquiry except such as can be inferred from the purpose for which inquiry is intended. The duty of the Magistrate is to determine whether there is some reliable evidence i. e. , evidence which he has no reason to think is false, in support of the denial and for that purpose he may allow the witnesses called in support of the denial to be cross-examined. "
I agree with these observations simply because the Magistrate examined the Patwari who was permitted to be cross-examined by both the parties and because the witnesses produced by Zinsi were allowed to be cross examined by the opposite party, I am not prepared to accept that the enquiry conducted by the Magistrate was in any manner vitiated or that the Magistrate had transgressed the limits imposed on the exercise of his jurisdiction under sec. 139-A of the Code.
I think it proper to mention that the learned Magistrate while deciding the question of the reliability of the evidence adduced by Zinsi also seems to have taken into consideration the statement of Zinsi himself which he had made before the Panchayat wherein he had categorically admitted that he had constructed the alleged obstruction on the way. This Statement is Ex. P. 1 on the file. This statement of Zinsi himself undoubtedly negatives his plea that there was no way in existence on the place where the construction has been raised by him. This circumstance supports the finding of the court below that the evidence in support of the denial was unreliable.
Learned counsel for the petitioner next urged that the order of the trial court is illegal because the learned Magistrate placed his reliance on an order of the Panchayat declaring it to be a public way but that order could not be read in evidence as it was not a final order because appeal against that order was pending in the Panchayat Samiti. There is no doubt that the Court could not derive any support from such an order which was not a final one, but I find that there is other evidence on the record to warrant an inference that the evidence produced by Zinsi in support of his denial of public way was unreliable. Simply because the Court took into consideration the order passed by the Panchayat while making the provisional order absolute under sec. 137 of the Code, it cannot be said that the learned Magistrate committed an error which vitiates his order and requires to be rectified in the exercise of the second revisional jurisdiction of this court.
For the reasons mentioned above, I do not find any force in this revision application and it is, therefore, dismissed. .