G.C. Mathur, J. - (1.) THE Applicants filed a complaint Under Section 133 Code of Criminal Procedure against the opposite parties alleging that the opposite parties had obstructed public Nala No. 573 on account of which their fields were inundated and their crops destroyed. They prayed that action Under Section 133 Code of Criminal Procedure be taken for removal of the obstruction.
(2.) ON 5 -9 -1967 the SDM passed a conditional order Under Section 133 Code of Criminal Procedure. The opposite parties appeared and contested the application. They denied the existence of any public right in the Nala and also the allegation that they had obstructed the Nala. The SDM then held an inquiry Under Section 139 -A Code of Criminal Procedure and on 18 -11 -1967 held that the opposite parties had failed to adduce reliable evidence in support of the denial of the public right. He then proceeded with the case Under Section 137 Code of Criminal Procedure. It appears that no evidence was led after the order Under Section 139A was passed by the opposite parties but on 20 -1 -1968 the SDM made a local inspection of the place without informing any of the parties. He placed his inspection report on the record. By an order dated 10 -5 -1968 the SDM held that the Nala was not a public one and that there was no obstruction therein. He accordingly dropped the proceedings Under Section 133 Code of Criminal Procedure. The Applicants went up in revision against this order but the same was dismissed by the Temporary Civil and Sessions Judge, Mirzapur. Hence this revision. Learned Counsel for the Applicant has challenged the order of the SDM on the following two grounds: (i) that after recording an order Under Section 139 -A that there was no reliable evidence in support of the denial of the public right it was not open to the Magistrate at a subsequent stage Under Section 137 to go into this very question and to hold that there was no public right in the Nala; (ii) that the SDM acted illegally and improperly in making a local inspection behind the back of the parties and in basing his order mainly on his inspection report.
(3.) CH . X of the Code of Criminal Procedure deals with public nuisance. Section 133 in this Chapter provides for the making of a conditional order requiring the person causing obstruction or nuisance etc. to remove the obstruction or nuisance. Section 134 provides for the service or notification of the conditional order. Section 135 provides that the person to whom the order is addressed should either carry out the order or appear before the court to show cause against the same. Section 136 provides that if such a person does not appear and show cause he shall be liable to the penalty Under Section 188 IPC and the conditional order shall be made absolute. Section 139A should really have been introduced after either Section 135 or 136. It comes into operation on the appearance of the person against whom the conditional order is directed. When such a person appears the court is required to question him as to whether he denies the existence of the public right before proceeding Under Section. 137 or 138, If he denies the existence of the public right the Magistrate is required to inquire into the matter. If the Magistrate finds that there is any reliable evidence in support of such denial then he is to stay the proceedings until the matter of the existence of the public right has been decided by a competent civil court. If he finds that there is no such reliable evidence he shall proceed according to the procedure laid down Under Sections 137 and 138 as the case may be. Sub -section (3) of Section 139 -A provides the consequence of an order Under Section 139 -A(2) and it reads thus: 139 -A(3). A person who has, on being questioned by the Magistrate Under Sub -section (1), failed to deny the existence of a public right of the nature therein referred to, or who, having made such denial, has failed to adduce reliable evidence in support thereof, shall not in the subsequent proceedings be permitted to make any such denial, nor shall any question in respect of the existence of any such public right be inquired into by any jury appointed Under Section 138. We are not concerned with Section 138 as that is not applicable to our case. The words italicised above] clearly provide that if the person against whom the conditional order is directed either does not deny the existence of the public right or if he denies it but fails to adduce reliable evidence in support of the denial he will not be entitled or permitted to deny the existence of the public right in subsequent proceedings Under Section 137. The intention of the legislature was that the question of the existence of the public right shall not be decided by the Magistrate in the summary proceedings u/Ch. X Code of Criminal Procedure. If the public right is not denied he must proceed on the basis that it exists. If the public right is denied and reliable evidence is produced in support of the denial he must stay the proceedings till the matter is decided by a competent civil court but if reliable evidence is not produced in support of such denial he must again proceed on the basis that the public right exists. Once the Magistrate has recorded an order Under Section 139A(2) that the person denying the existence of the public right has failed to adduce reliable evidence the question cannot be reopened in subsequent proceedings Under Section 137. That being the position the SDM in the present case, was not entitled to go into the question, whether there was any public right in respect of the Nala in question in his final order dated 10 -5 -1968 when earlier he had recorded an order Under Section 139A to the effect that the opposite parties had failed to adduce reliable evidence in support of the denial of the existence of the public right.;