- (1.) THIS application under Section 482 Cr. P. C. is directed against the order passed in revision by the learned Sessions Judge, Sikar dismissing the revision of the petitioner filed in his Court against the order of the learned Sub-Divisional Magistrate, Sikar making conditional order issued under Section 133 Cr P. C. on 12-9-77 as absolute under Section 138 Cr. P. C. It arjses in the following circumstances:
(2.) AN application was addressed by Madan Lal Sethi (to be referred as party No. 1) to the Hon'ble Chief Minister, Government of Rajasthan mentioning therein that Ghisalal (hereinafter referred to as 'party No 2 has constructed a wall in front of the gate of his house, as a result of which he cannot enter into his house, This application was forwarded to S. H. O. Khatu, District Sikar. who submitted a report to the learned Sub-Divisional Magistrate on September 4. 1977 for taking action under Section 133 (1) Cr. P. C. The learned Sub-Divisional Magistrate on receiving the police report aforesaid and considering that there is unlawful obstruction which should be removed from a way which is or may be lawfully used by the public, made a conditional order on September 11, 1977 under Section 133 (1) Cr. P. C. requiring party No. 2, who is said to have caused obstruction on nuisance to remove such obstruction within 7 days or if he objects so to do, to appear before him and show cause why the order should not be made absolute. Party No. 2 put in appearance on 21-9-1977 and denied existence of any public right in respect of the way, in writing. The learned Sub-Divisional Magistrate first recorded statement of Madanlal (Party No. 1) and thereafter, at the request of the advocate for the parties ordered on 14-6-78 that first evidence of Party No. 2 should be recorded. After giving opportunity to Party No. 2, to lead evidence and Party No. 2 having failed to avail of that opportunity the learned Sub-Divisional Magistrate closed the evidence of Party No. 2 on August 17, 1978. Thereafter under Section 138 Cr. P. C. the conditional order made under Section 133 (1) Cr. P. C. on September 12, 1977 was made absolute. A revision was filed by Party No. 2 before the learned Sessions Judge who dismissed the same. Two objections have been raised by the learned Advocate for Party No. 2 to the effect that: - (1) Learned Magistrate has not complied with Section 137 Cr. P. C. and the entire proceedings are vitiated; (2) Conditional order made under Section 133 (1) Cr. P. C. could not have been made absolute without recording evidence of the parties under Section 138 Cr. P. C. According to the learned Advocate, once a party against whom conditional order is made under Section 133 (1) Cr. P. C. puts in appearance, it is the duty of the Magistrate to question him as to whether he denies existence of any public right in respect of the way and if he so denies, the Magistrate must inquire into the matter before proceeding under Section 138 Cr. P. C. If on inquiry, the Magistrate finds that there is any reliable evidence in support of such denial, then he cannot proceed further and has to stay the proceedings until the matter of the existence of such right has been decided by a competent Court. In the instant case, it appears from the perusal of the file that Party No. 2 against whom the conditional order was made under sec 133 (1) Cr. P. C. put in appearance on September 21. 1977 and the learned Magistrate did not question him about the existence of a public right in respect of the way. But on the same day, opposite party No. 2 in writing came out with a case that there was no public way existing and, therefore, the failure of questioning party No. 2 as required under Subsection (1) of section 137 Cr. P. C. is only an irregularity and does vitiate the inquiry. But it should not be understood that the Magistrates should not discharge the duty enjoined on them under the Law and it is expected of the Magistrate to comply with the provisions of law and to question the party under Section 137 (i) Cr. P. C, against whom a conditional order is made. It is now to be seen as to whether any inquiry was made under Section 137 Cr. P. C. The scope of inquiry under Section 137 Cr. P. C. is different than one under Section 138 Cr. P. C. While under the former (Section 137 Cr. P. C), the inquiry is only limited to the extent as to whether there is any reliable evidence in respect of the denial of the existence of any public right in respect of the way. and evidence is to be led only by the party against whom the conditional order under Section 133 (1) Cr. P. C. is made, and the party at whose instance a conditional order is made, is not required nor can be called upon to lead evidence, but that party will have a right to cross-examine the witnesses of the party who leads evidence in support of the denail, under the later (Section 138 Cr. P. C.) the question of the existence of any public right in respect of the way cannot be/should be allowed to lead evidence on this subject, and the only scope of inquiry is as to whether the conditional order as originally made under Section 133 (1) Cr. P. C. or subject to such modification as the Magistrate considered necessary is reasonable or proper. The evidence of the parties is to be recorded in the matter as in a summons case. The party at whose initiation the proceedings are initiated and a conditional order is made is to lead evidence first and thereafter the party against whom a conditional order is made is to lead evidence. If on inquiry the Magistrate is satisfied that the conditional order as originally made or subject to such modification or be considers necessary, is reasonable and proper, the same shall be made absolute with or without modification as the case may be. If the Magistrate is not so satisfied then no further proceedings shall be taken in the case. The learned Magistrate perhaps was not in know of these provisions of law and, therefore, it appears that after the denial of the existence of a public right of way by party No. 2 on September 21, 1977, he proceeded to first record the statement of Madanlal Sethi, Party No. 1. When the Advocates appearing for the parties perhaps brought the correct legal position to his notice, he ordered on June 14, 1978, that firstly, evidence of party No. 2 in support of the denial of the existence of a public right in respect of the way shall be recorded. After giving three opportunities to Party No. 2 to lead evidence in support of the denial, his evidence was closed. After the closure of the evidence, it was necessary for the learned Magistrate to have discussed the evidence and to come to a finding as to whether there is any reliable evidence in respect of such denial and if he had to come to that conc!us;on. he had to stay further proceedings till such time as the existence of such right has been decided by a competent Court. If he would have arrieved at the finding that there is no such evidence only then he could have proceeded further to inquire as aforesaid into the matter as required under Section 138 Cr PC. The learned Magistrate immediately after the closure of the evidence under Section 137 Cr. P C, which evidence was only limited to show as to whether there is any reliable evidence in respect of such denial, made the conditional order absolute. It can, therefore, not even be said in the instant case, that the learned Magistrate complied with the provisions of Section 137 Cr. P. C. which are mandatory in case, a party against whom a conditional order is made, appears and denies the existence of a public right in respect of the way. I have already stated above that the scope of enquiry under Section 137 Cr. P. C. is limited, and, therefore, firstly the evidence brought en record during the course of inquiry under Section 137 Cr. P. C. cannot be read for the purposes of inquiry under Section 138 Cr. P. C. and secondly, on bare perusal of Section 138 Cr. P. C. it will be clear that if the person against whom conditional order, is made, appears and shows cause against the order the Magistrate has to take evidence of the parties in a manner as in a summons case. , and that too only on the point as to whether the conditional order as originally made under Section 133 (1) Cr. P. C. or subject to such modification as the Magistrate thinks necessary, is reasonable and proper or not. J A combined reading of Sections 133, 137 and 138 Cr. PC. to my mind will show that the question of existence of any public right in respect of the way cannot be allowed to be reagitated under Section 138 Cr. P. C. and the parties cannot be allowed to lead evidence on this point again. The procedure as prescribed in Chapter X Cr. P. C. is obligatory and first evidence of the complainant i. e. the person, at whose instance proceedings under Section 133 Cr. P. C. are initiated, is to be recorded. Thereafter, the evidence of the opposite party is to be recorded. The burden of proof is always on the party at whose instance proceedings are initiated. The learned Magistrate in the instant case did not record any evidence under Section 138 Cr. P. C. and therefore, lacked the very jurisdiction to make the conditional order as absolute. Therefore, it is a fit case in which there is clear abuse of the process of the court and interference is called for under Section 482 Cr. P. C.
(3.) IT was submitted by the learned Advocate for non-petitioner No. 1 that the conduct of the party No. 2 is such that this Court should not interfere in the exercise of in its inherent powers. According to him, the alleged obstruction or nuisance of public way had been removed on November 16, 1978 and on November 20, 1978, orders for maintaining status quo were obtained from this Court and in the garb of those orders, wall which had been demolished was re-constructed on November 19,1978. Petition in this Court has been filed on October 16. 1978 though notices were only issued to the non-petitioners on November 20, 1978. IT is a question of fact as to whether the Advocate conducting the case was in know of the demolition of, if any of the wall on November 16. 1978 in pursuance of the order of the learned Sub-Divisional Magistrate and concealed the same fact or not ? Under the circumstances, it cannot be said that the conduct of party No. 2 is such which disentitles him for an order Under Section 482 Cr, P. C, if a Party is entitled for the same in the facts and circumstances of the case. I will, therefore, accept this application under Section 482 Cr. P. C. and set aside the order of the Sessions Judge, Sikar as well as of the Sub-Divisional Magistrate, Sikar and will remand the case to the Sub-Divisional Magistrate Sikar to first proceed under Section 137 Cr. P. C. and thereafter, if necessary under Section 138 Cr. P. C. in the light of the observations made above. .;