CHHEDI LAL Vs. EMPEROR

JUDGEMENT

(1.) A conditional order under Section 133, Criminal P.C. for the removal of an encroachment on a public way was passed by a Sub-Divisional Magistrate on 9th May 1933. Chhedi Lal who was served with a notice of this order appeared before the Magistrate under Section 139-A, Criminal P.C. and said that he had not committed any encroachment on the public way and produced a copy of the remarks of the medical officer of health dated 3 February 1938. The remarks are as follows: I have seen the site. As I doubted about encroachment I had the old foundation dug. Recommended.

(2.) It is obvious from this note that the medical officer of health was of the opinion that there was no encroachment. It has been pointed out in a number of cases by this Court that a Magistrate under Ch. 10, Criminal P.C. makes only a summary enquiry into the matter in dispute and does not determine any question of title and indeed such a determination is to be deprecated. All that he has got to see under Section 139-A(2), Criminal P.C., is whether there is any reliable evidence in support of the denial of the person against whom the notice has been issued or whether his denial is only frivolous and if there is any reliable evidence in support of such denial the Magistrate shall stay the proceedings until a matter of existence of such right has been decided by a competent Civil Court, but if he finds that there is no such reliable evidence he shall proceed as laid down in Section 137 or Section 138 as the case may require. In the present case the Magistrate did not follow the procedure as laid down in Section 137 or Section 138, Criminal P.C. but made his order of 9 May 1938 absolute on 20 May 1938. The learned Sessions Judge has in his referring order pointed out that the title set up by the applicant was certainly based on reliable evidence and was not merely a bogus one and under the circumstances the learned Magistrate ought to have stayed the proceedings pending the decision of the matter by a Civil Court of competent jurisdiction.

(3.) I agree with the view of the learned Judge and I think that in the present case there was some reliable evidence in support of the applicant's denial and the Magistrate ought to have stayed the proceedings and that in any event the Magistrate has erred in making his order absolute without complying with the procedure laid down in Section 137 or Section 138, Criminal P.C.