H.R. Khanna, J. - (1.) THE short question arising for determination in this case is whether a Petitioner making an application under Section 133, Code of Criminal Procedure (hereinafter) referred to as the Code, can ask for the setting aside of the order of the trial Magistrate under Sub -section (2) of Section 137 of the Code on the ground that the trial Magistrate held no enquiry under Sub -section (1) of Section 139 -A of the Code? This question has arisen in the following circumstances.
(2.) HUKAM Singh, Petitioner filed an application under Section 133 of the Code against Niranjan Singh and Hazara Singh, Respondents on the ground that they had illegally encroached upon a public thoroughfare leading from Fatehgarh to Kurali and Chatauli railway stations by bringing that area under cultivation and enclosing it with a fence. This act of the Respondents was stated to have caused considerable difficulty to the people using that thoroughfare. The Sub -Divisional Magistrate, Kharar, to whom the application was made, made a conditional order on 21st January, 1960, directing the Respondents to remove the encroachment from the thoroughfare within fifteen days and to show cause against the order before Tehsildar -cum -Magistrate 2nd Class, Kharar, by 8th February, 1960, in case they had any objection. The Magistrate, 2nd Class, Kharar, thereafter proceeded to hear the parties. He recorded their evidence and visited the spot and came to the conclusion that there had been no encroachment on the public thoroughfare. It was accordingly ordered that no further action was necessary in the matter and the application be filed. The Petitioner then filed a revision and the learned Sessions Judge, Ambala, held that it was essential for the trial Magistrate to have held an enquiry under Section 139 -A of the Code before proceeding under Section 137 of the Code. The learned Sessions Judge has accordingly recommended for quashing the order of the trial Magistrate and for directing him to proceed in accordance with the provisions of Section 139 -A.
(3.) I have heard Mr. B.S. Chawla, on behalf of the Petitioner and Mr. H.S. Wasu, on behalf of the Respondents and am of the view that the recommendation of the learned Sessions Judge, should not be accepted. Chapter X of the Code, which contains Sections 133 to 143, is entitled "Public Nuisances" and provides for speedy remedy for removal of public nuisances and various kinds of obstructions in public paths and other places and dangers to the public. Section 133 authorises a Magistrate of 1st Class or a higher Magistrate to pass a conditional order requiring the person causing such obstruction, nuisance or danger, to remove it; or, if he objects so to do, to appear before himself or a Magistrate of 2nd Class and move to have the order set aside. Section 134 provides for the service of the conditional order. Section 135 requires the person, against whom order is made, to obey the same or to show cause against the order and in case he so deems proper to apply for appointment of jury to try whether the order is reasonable and proper. Section 136 provides that the failure of a person to do so would make him liable under Section 188 of the Indian Penal Code. Section 137 prescribes the procedure to be adopted where a person proceeded against shows cause, and reads as under: 137. (1) If he appears and shows cause against the order, the Magistrate shall take evidence in the matter as in a summons -case. (2) If the Magistrate is satisfied that the order is not reasonable and proper, no further proceedings shall be taken in the case. (3) If the Magistrate is not so satisfied, the order shall be made absolute. Section 138 and 139 deal with the procedure in case of appointment of jury. Section 139 -A which has a material bearing on the present case, is to the following effect: 139 -A. (1) Where an order is made under Section 133 for the purpose of preventing obstruction, nuisance or danger to the public in the use of any way, river, channel or place, the Magistrate shall, on the appearance before him of the person against whom the order was made, question him as to whether he denies the existence of any public right in respect of the way, river, channel or place, and, if he does so, the Magistrate shall, before proceeding under Section 137 or Section 138, inquire into the matter. (2) If in such inquiry the Magistrate finds that there is any reliable evidence in support of such denial, he shall stay the proceedings until the matter of the existence of such right has been decided by a competent Civil Court; and; if he finds that there is no such evidence, he shall proceed as laid down in Section 137, or Section 138, as the case may require. (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.;