- (1.) THESE are two references by the District Magistrate, Nagaur, which arise in the following circumstances:
(2.) BAXARAM made a complaint against Jaikishen and another on 22nd September, 1950, that the way to his field lay through Jaikishen's filed but the latter was obstructing that way, and, therefore, applied under sec. 133 Cr. P. C. to the Sub-Divisional Magistrate, Didwana, for action being taken in the matter. The Sub-Divisional Magistrate, forwarded the complaint to the Sub-Inspector Police. Didwana, for necessary action by his order passed on the same day. On the 14th October, 1950, the Sub-Inspector instituted a complaint against Jaikishen and Jagguram, another person whose field lay in the neighbourhood of BAXARAM, to the effect that BAXARAM's way lay through Jaikishen's and Jaggu's field, that the latter had blocked it and that there was a danger of the breach of the peace and so action be taken under sec. 133 Cr. P. C. Thereupon on 17th October, 1950, notices were directed to be issued to Jaikishen and Jagguram to show cause why the way in question be not thrown open. On 30th October, 1950, Jaikishen filed his reply. His case was that there was no way through his field leading to BAXARAM's field. He also alleged that there was another way for BAXARAM and that the latter only wanted to harass Jaikishen by giving up that way and carrying out a new way through his field. Jagguram did not appear at all nor did he file any reply. The learned Magistrate fixed the case for evidence on 29th November, 1950. He also noted that an inspection of the site appeared to be necessary. It appears that no evidence was recorded on any of the dates on which the case came up subsequently and the learned Magistrate inspected the site on the 20th June, 1951, and passed his order which is now been challenged before me. It is not necessary to repeat at length the order passed by the learned Magistrate and it is sufficient to state that he considered it proper that some way should be found for Baxaram and he defined one such way and further added that Baxaram shall not take his bullock-carts or cattle along that way when Jaikishen's field may be under cultivation. From that order both Jaikishen and Baxaram preferred revisions to the learned District Magistrate, Nagaur. Jaikishen's grievance was that the learned Magistrate had no jurisdiction to pass the orders which he did under sec. 132 Cr. P. C. and that the procedure adopted by him was entirely wrong and illegal. Baxaram's grievance was that the learned Magistrate had acted wrongly in passing the restrictive order against Baxaram that he will not be allowed to take his cattle and bullock-carts through Jaikishen's field when the latter's field may be under cultivation. The learned District Magistrate had made the present references arising out of the aforesaid two revision applications and has recommended that the proceedings taken by the Magistrate under sec. 133 Cr. P. C. be quashed. Both the references will be disposed of by this order as they arise out of the same facts. The first ground urged by the learned counsel for Jaikishen is that the learned Magistrate had no jurisdiction whatsoever to initiate proceedings under sec. 133 Cr. P. C. , because the complaint made by Baxaram or subsequently by the police did not show that the alleged obstruction by Jaikishen was to a public right of way. There seems to be considerable force in this contention. The relevant portion of sec. 133 Cr. P. C. provides that : "whenever a District Magistrate, a Sub-Divisional Magistrate or a Magistrate of the first class considers, on receiving a police report or other information and on taking such evidence (if any) as he thinks fit that any unlawful obstruction should be removed from any way, which is or may be lawfully used by the public such Magistrate may make a conditional order requiring the person causing such obstruction to remove such obstruction, or, if he objects so to do, to appear before himself or some other Magistrate of the first or second class and move to have the order set aside or modified, as the case may be. " There is no allegation whatsoever in the present case that the way claimed by Baxaram was a public way, nor is there any evidence on the record to that effect. In these circumstances, I have no hesitation in holding that the order of the learned Magistrate was bad for want of jurisdiction. It is scarcely necessary to cite any authorities in support of the view taken by me, because it is clear from the very language of sec. 133 Cr. P. C. , but if any authorities may be necessary, I would cite Munna Tiwari vs. Chandarbali (1) (A. I. R. 1928 All 627), Bhaiya Gauri Shanker vs. Bhagely Pande (2) (A. I. R 1925 Oudh, 130 (1)) and Harnandan vs. Rampalak (3) (A. I. R. 1939 Pat. 460 ). The next contention raised on behalf of Jaikishen is that the learned Magistrate should have observed the procedure prescribed under sec. 139 (A) if the Magistrate at all wanted to proceed under sec. 133 Cr. P. C. When Jaikishen appeared before the Magistrate, the latter must have questioned him as to whether he denied the existence of any public right in respect of the way claimed by Baxram and then on denial of such right, the learned Magistrates should have inquired into the matter. It may be pointed out that as Jaikishan had filed a written reply denying the existence of any such right whatsoever, a formal question to him to elicit the same answer need not be considered to be imperative but that would not, in any case, dispense with the further requirement laid down in sec. 139 (A) that he should have made an enquiry as to whether there was or was not reliable evidence in support of the denial. The law is clear that if the matter involves serious controversy or a bonafide dispute as to the nature of the right, the learned Magistrate must stay the proceedings under sec. 133 Cr. P. C. and refer the parties to a civil court. On the other hand, if the Magistrate comes to the conclusion that there was no such evidence, then it would be his duty to proceed in accordance with sec. 137 Cr. P. C. Thus, there has been a clear failure on the part of the Magistrate to comply with the provisions of sec. 139 (A) Cr. P. C. in this case. The last ground urged by learned counsel for the petitioner is that the learned Magistrate did not take the trouble of recording any evidence in this case but merely inspected the site and passed the order which he did. It has been seriously contended before me that there was an alternative way to Baxaram's field other than the one alleged through the field of Jaikishen. The learned Magistrate has, however,, recorded in the order that there was no other way. This indeed a matter of fact and the learned Magistrate could have arrived at such a conclusion only after he had recorded the evidence of the parties and not otherwise. The principal is, well established that no Judge should decide a case merely on the basis of his personal inspection, because by doing so he places himself in the position of a witness. It is of course open to presiding officer to find in favour of one set of evidence rather than the other, on the basis of his personal inspection. [see Bhoora vs. Tara Singh (1) (A. I. R. 1927 All. 267.)]. It is further necessary to state that the provisions of sec. 137 Cr. P. C. are imperative and that before a Magistrate passes a final order, he must duly record the evidence of the parties. There has, therefore, been a clear breach of the provisions of sec. 137 Cr. P. C. I cannot part with this case without recording that this case furnishes a glaring example of the breach of the provisions of Chapter X of the Criminal Procedure Code. The procedure adopted by the learned Magistrate in this case has been wholly wrong from start to finish and I have no doubt that if the provisions of sec. 133 and subsequent sections had only been read by the Magistrate, much public time and labour would, have been saved. The result is that I accept these references, and set aside the order of the learned Sub-Divisional Magistrate and quash the entire proceedings. . ;