- (1.)PARTY No. 1. Bheraram and three others, made an application under sec. 133, Cr. P. C. , in the court of Sub-divisional Magistrate, Deedwana, on May 16, 1967, stating therein that there was public way 16 ft. wide, in village Ransisar. PARTY No. 2, Gangaram and Khemaram, committed encroachment thereon on May 12, 1967, reducing its width to about 5 ft. This obstruction caused a great deal of inconvenience to the general public. Besides, there was every possibi-lity of breach of the peace. The petitioners, therefore, prayed that the obstruction should be ordered to be removed in accordance with sec. 133, read with sec. 137 Code of Criminal Procedure. On receipt of the above application, Sub-divisional Magistrate inspected the site that very day and issued an order that the obstruction should be removed by party No. 2 within 3 days, failing which the same would be got removed by the court. On May 22, 1967, Gangaram filed a reply, denying the fact that the width of the public way was about 16 ft. He alleged that the public way was only about 10 ft. wide and that he had raised construction not on the public way but on his own land, obtained by him from the Panchayat through a 'patta. ' He further stated that his construction was about 1 ft. away from the public thoroughfare, Khemaram, in his reply, admitted to have committed en-croachment on the public thoroughfare, and stated that he would do away with it if the same was removed by Gangaram On May 23, 1967, evidence produced by party No. 1 was recorded. On May 27, 1967, witnesses produced by party No. 2 were examined. That day arguments were also heard and the case was subsequently disposed of on June 2, 1967, ordering Gangaram and Khemaram to remove the obstruction.
(2.)AGGRIEVED against the above order, a revision application was filed by Gangaram in the court of learned Sessions Judge, Merta, but the same was rejected on February 8, 1968. Dissatisfied with the above order Gangaram has filed the present revision-petition, challenging the order of Sub-divisional Magistrate, Deed-wana, dated June 2, 1967, as also that of learned Sessions Judge. Merta, dated February 8, 1968.
Contention of learned counsel for the petitioner is that Gangaram denied the fact that there was any public way on the land which was in his possession in accordance with the 'patta' obtained from the Panchayat. He further urged that when such a denial was made in the court of Sub-divisional Magistrate, it was incumbent upon it to start proceedings according to sec. 139-A, and not to jump to sec. 137, Cr. P. C, and dispose of the case after recording evidence of both the parties. Learned counsel further urged that provisions of sec. 139-A, are mandatory and their non-compliance by the court vitiates the entire proceedings.

Learned counsel for Bheraram and others supported the judgment of Sub-divisional Magistrate as also that of Sessions Judge, Merta. The main contention of learned counsel for party No. 1 is that the provisions of sec. 139-A, are directory in nature and that their non-compliance would not affect the decisions of the courts below, unless they caused substantial prejudice to party No. 2.

Sec. 139-A, Cr. P. C. was inserted by the Code of Criminal Procedure (Amendment) Act, 1923 (18 of 1923), in agreement with previous decisions, which held that the Magistrate could stay proceedings if he was satisfied that there was a bonafide dispute as to a private right. The object of the section is to prevent the Magistrate arrogating to himself functions and duties of a civil court, and instituting a detailed inquiry in respect of the civil rights of the parties. The section requires that when a person, served with an order under sec. 133, Cr. P. C. appears, the Magistrate shall ask him whether he denies the existence of the public right in question. In case of denial the Magistrate is bound to conduct an inquiry into the matter in accordance with the provisions of sec. 139-A, Cr. P. C. , before undertaking inquiry referred to in sec. 137, Cr. P. C. At this inquiry the person shall produce "reliable evidence" (which must of course be legal evidence), in support of the denial. If the Magistrate finds that there is some reliable evidence to support the denial, his jurisdiction would be ousted and the proceedings in his court would be stayed until the matter stands decided by a competent civil court. If the person does not raise any question of private right or if there is no reliable evidence in support of such right, the Magistrate shall proceed to inquire into the matter under sec. 137, Cr. P. C. , and pass final order.

In this case, Bheraram and others made a complaint that there was a thoroughfare, 16 ft, wide, for going from Ransisar to Sagubadi. That way was obstructed by Gangaram and Khemaram and they left hardly 5 to 4 ft wide path. As this obstruction was causing much trouble to the villagers, it should be removed. Gangaram, in his reply, dated May 27, 1967, admitted that there was a thoroughfare 10 ft. wide, which he has not obstructed. He had raised a wall on his own land and that wall is 1 ft. , away from the thoroughfare. He has further mentioned in his reply that Khemaram was in collusion with Bheraram and that it was Khema Ram, who created the obstruction and not he. Learned counsel for party No. 1 has argued that Gangaram has admitted that there was a public way and therefore, the Magistrate was empowered to proceed under sec. 137, Cr. P. C. , straightway. A denial by a person of the existence of the public right in that part of the way on which the obstruction has been made shall be deemed to be a sufficient denial within the meaning of sec. 139-A, Cr. P. C. Whenever, a preliminary order under sec. 137, Cr. P. C. , is issued with respect to the public right of way, there is an implicit assertion that the public has a right with respect to every part of the way or place including the way which has been obstructed. If, therefore, the person, who is alleged to have caused the obstruction, comes forward to deny the public right with respect to that part of the way, which is alleged to have been obstructed by him, he is, in effect, denying the right of the public way. It may be that he is not denying the right of public with respect to the entire way, but only with respect to a portion of it. The denial of the public right with respect to a part of the way is a virtual denial of the public right with respect to the way itself.

In a case like the present one, where the claim of Bheraram and others was that the public had a right with respect to the entire way, the denial of Ganga Ram of the public right with respect to a part of the way or place is a sufficient denial within the meaning of sec. 139-A Cr. P. C. Any other interpretation would lead to unhappy results and would nullify the object with which sec. 139-A Cr. P. C. , was enacted. In this connection, a reference is made to Mohd. Ayub vs. State (l), wherein a Division Bench of the Allahabad High Court, composed of Wali Ullah and Wanchoo JJ. held that the denial of the existence of public right contemplated by sub sec. (1) to sec. 139-A Cr. P. C. includes the denial of such public right in respect of the place or piece of land on which an encroachment is said to have been made. It is thus clear that for the applicability of sec. 139-A Cr. P. C. it is not necessary that denial should be a denial of the existence of the entire public right in respect of the way. The denial of the public right in the piece of the land said to have been encroached upon by the party concerned is denial of the existence of the public right and that is enough for invoking the assistance of sec. 139, Cr. P. C. In this case, as I have already stated above, Gangaram took a definite stand that the public way does not exist on the land which he had acquired from the Pan-chayat through a 'patta'. That shows that he made a positive denial of existence of public thoroughfare: on the strip of land, where he had raised construction.

When Gangaram made the denial of the public thoroughfare on his land, it was the duty of the Magistrate to hold an inquiry under sec. 139. Cr. P. C. , with a view to ascertain whether there was a reliable evidence in support of the denial, and to record a clear finding on the point. If this finding is to the effect that there is reliable evidence in support of the denial of the opposite party, the Magistrate is bound to stay proceedings until the matter of the existence of the alleged public right has been decided by a competent civil court. If, on the other hand, he finds that there is not credible evidence in support of the denial of such a right, the Magistrate is entiled to proceed further and to deal with the matter in accordance with the provisions of sec. 137. Cr. P. C. Here what learned Magistrate actually did was that without recording any finding under sec 139-A Cr. P. C. . , he examined the evidence of the parties and disposed of the case. It is not clear whether the Magistrate thought that he was holding inquiry under sec. 139-A Cr. P. C. Even if he did so, it seems to me that the inquiry made by him was not in consonance with the provisions of sec. 139-A Cr. P. C. He did not reach any conclusion to the effect that there was reliable evidence in support of the denial of the existence of the public path by Gangaram. No proper finding was given by the learned Magistrate under sec. 139-A Cr. P. C. and that being so, the order, made by him ostensibly under sec. 137, must be deemed to have been made without jurisdiction.

In support of the above proposition reliance is put on Nur Ali Shah vs. Natha (2), wherein Campbell J. , observed that where a right of way over an uncultivated field was in dispute between the villagers and the owner closed that way by bringing the field under cultivation, relying on the revenue records, sec. 139-A, Cr. P. C. , was applicable and that right of way is obviously a matter to be decided by the civil court and not by the criminal court. Learned Judge further pointed out that in the interest of public policy, criminal courts should not deal with matters which it is compulsory to leave to civil courts. In Banshidhar Marwari vs. P. W. D. Bihar (3), Rowland J. , held that it is the duty of the Magistrate to put questions to the party concerned under S. 139-A. , Cr. P. C. , as to whether it denied the existence of any public right in respect of the way alleged to have been obstructed and, if the Magistrate fails to do this duty, his order is liable to be set aside. Like observations were made in Raghunath Upadia vs. Emperor (4) by Piggott J. In that case the dispute related to the closing of an old drain and the party concerned asserted that the drain was not a public one. The Magistrate instead of proceeding under S. 139-A. , at once took evidence under S. 137. It was held that the trial was vitiated by adopting wrong procedure. In Raghunandan vs. Shew Nandan (5), Boys J. , pointed out that if there is a denial of the opposite party the court should proceed under S. 139-A. , and if there is reliable evidence, supporting the opposite party's denial, stay proceedings under S. 139-A-, should be undertaken until a competent civil court decides the matter of the public right of way.

There are three important decisions of our own High Court on the point in issue. In the case of Thakur Kalyan Singh vs. The State (6), it was observed that in proceedings under S. 133, provisions of S. 139-A. , Cr. P. C. , are mandatory, and the Magistrate is not authorised to jump to the proceeding under S. 137, without first resorting to the proceedings under S. 139-A. Similar view was expressed by Modi J. , in Jai Kishan vs. The State (7 ). Learned Judge has pointed out in para 5 of his judgment that if the matter involves serious controversy or a dispute as to the nature of the right, the Magistrate must stay the proceedings and refer the parties to the civil court. However, if the Magistrate reaches the conclusion that there is no such evidence pertaining to the right, then he can proceed under S. 137, Cr. P. C. Again, Sarwan vs. "purilal (8), is a direct authority on the point in issue. In that case Dave J. , (as he then was) held that it was incumbent upon the Magistrate to first proceed under S. 139-A. , Cr. P. C. , and find out if there was reliable evidence in support of the denial made by the non-petitioner. If the non-petitioner could prove that the land in dispute was included in the 'patta', it would have certainly been a reliable evidence in support of the denial and in that case the Magistrate should have stayed the proceedings until the matter of the existence of the right of way was decided by a competent civil court. Learned Judge has also pointed out that the provisions of S. 139-A. Cr. P. C. , are mandatory in nature and the Magistrate could not have jumped to proceeding under S. 137 without first resorting to the proceedings under S. 139-A. , Cr. P. C.

Learned counsel for party No. 1 Bheraram has referred to Sukh Ram Kalu Ram vs. Manohar Lal Ramsaran Dass (9), but that authority does not solve the problem. In that case, the respondent was asked to lead evidence in support of his denial, as required by S. 139-A , Cr. P. C. Thus, there was an actual inquiry having been made by the Magistrate and, therefore, failure to strictly and meticulously to comply with the technicalities of S. 139-A. Cr. P. C. , was considered to be curable under S. 537, Cr. P. C. Learned counsel adverted to a later decision of the Allahabad High Court reported in Gulab Singh vs. State (lo) wherein James, J. , held that the provisions, regarding questioning under S. 139-A. , is not mandatory, but merely directory. In the same judgment, it has further been observed that where the Magistrate has substantially complied with the law and no prejudice has been caused to the person concerned, the Magistrate's final order cannot be assailed on a mere technical ground that the Magistrate had omitted to question the person concerned as to whether he denied the existence of any public right in respect of the way on which he was alleged to have encroached. In the Allahabad case (10) the party concerned did not deny the encroachment and, therefore, no useful purpose could have been served by putting oral questions on the same subject. The facts of that case are thus materially distinguishable from those of the case in hand. In the instant case Gangaram made a total denial of the right of way on the land which is alleged to have been encroached upon and which he had got from the Panchayat through a 'patta'. Learned Sessions Judge, Merta, made observations in his judgment that Gangaram admitted that the alleged way was a public way and, therefore, there was no necessity to make any inquiry referred to under S. 139-A. , Cr. P. C. This finding is contrary to the contents of the reply submitted by Gangaram. Be that as it may, learned Magistrate ought to have first proceeded in accordance with S. 139 A. Cr. P. C. and come to some positive decision after looking into the 'patta' of Gangaram before proceeding under S. 137, Cr. P. C. S. 139-A. Cr. P. C. , as has been seen already, is imperative and the Magistrate was bound to proceed according to its provisions and stay the proceedings if there was a reliable evidence in support of the denial. He had no discretion in the matter.

I, therefore, allow this revision application, set aside the order of Sub-Divisional Magistrate, Deedwana, dated June 2, 1967, and remit the case to him with the direction that he should first proceed under S. "139-A. , Cr. P. C. , and then decide the matter according to law. The judgment of learned Sessions Judge, Merta, dated February 8, 1968, is also quashed.

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