MT RAM KALI Vs. KRIPA SHANKER

JUDGEMENT

(1.) The present application is made by one Mt. Ram Kali for the revision of an order passed by a First Class Magistrate of Bareilly in a case under Section 133, Criminal P.C. Briefly the facts are that Mt. Ram Kali had put up some turnstiles on a plot of land which admittedly is her property and thus obstructed a route or path which passes over her land to a temple known as Tapeshwarnath temple. An application under-S.133, Criminal P.C., was made to the Magistrate by the managing committee of the temple and a number of residents of the locality consisting mostly of railway employees living in the railway quarters in that neighbourhood and the procedure adopted by the Magistrate was as follows: The application having been made on 13 January 1932, he inspected the locality on 15 January, and apparently had some conversation with the parties. On 19 February certain documents were filed on behalf of Mt. Ram Kali. A notice under Section 133, Criminal P.C., was issued to her on 26 February, and 4 March was the date fixed for objections, or to be more accurate, for appearance under Clause (b) of Section 135. A written statement was filed on behalf of Mt. Ram Kali on 21 March (an adjournment from the 4 having been obtained) and the Magistrate then fixed another date, 12 April for the hearing of evidence. On that date neither evidence nor arguments were heard, but on a subsequent date, namely, on the 10 June, the Magistrate passed an order which is now the subject of this revision going into the merits of the case, that is to say, he referred to the documents filed by either party and to his local inspection and concluding that as the path or road which was the subject of dispute was the only regular approach to the temple for the large number of railway employees living in the quarters, it was but just and proper that the order to remove the turnstiles should be made absolute. An application for revision to the learned Sessions Judge was rejected.

(2.) After the original order or notice under Section 133 had been issued to Mt. Ram Kali it was necessary for her to appear under Clause (b) of Section 135 and it is not denied that appearance was made on her behalf. The next step which the Magistrate had to take was that set forth in Section 139-A, Criminal P.C. He had to question Mt. Ram Kali or her representative as to whether she denied the existence of the public way, and if she did, he had to inquire into the matter, and if he found that there was any re-liable evidence in support of her denial he was bound to stay the proceedings until the question should be decided by a competent civil Court. If, on the other hand, he found that there was no reliable evidence in support of her denial he had to proceed under Section 137, Criminal P.C., and pass orders accordingly. The procedure of the Magistrate in the case was not according to law, but the Sessions Judge seems to have considered that it was sufficiently correct to justify the order passed.

(3.) Now it is beyond controversy that the owner of land has a right to put up turnstile on that Land, and the Magistrate has no power to order him to remove the turnstiles unless he has by so doing obstructed a public way. If it is claimed that there is a public right of way over the land of any person and there is no judicial pronouncement on the point, it will in most cases be conceded that the owner of the land has, at any rate, an arguable case in a civil Court. I do not suggest that the jurisdiction of the criminal Court is ousted by the fact that the person proceeded against is the owner of the land, but, at any rate; the fact of owners ship is a very solid fact, and in the. majority of cases will undoubtedly provide "realible evidence" within the meaning of Clause (2) to Section 139-A in the absence of very cogent evidence, on the other side. In the present case there was no judicial pronouncement of the existence of a right of way, and the only evidence that the Magistrate had, apart from his own observations which were not reduced to writing, was a map and judgment of the year 1908 relating to some land acquisition proceedings in which the existence of a right of way was not one of the matters in issue, and the. land concerned, was not the same as that now in dispute. The admissibility or at any rate the value of this evidence in the present proceedings has been challenged, and might well prove to be a matter of some controversy. The map and the judgment are however part of the judgment on which the Magistrate has relied.