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Criminal Reference No. 350 of 1961, decided on 27th Feb ruary 1962.

, Ss. 139‑A & 537 Omission to put question as to existence of public right‑Person, however, denying existence and adducing evidence‑Technical error- Irregularity, curable under S. 537.

D. L. Rahman in support of the Reference.

Sultan Ahmad in opposition to the Reference.

This is a Reference by Mr. A. M. Hossain, Sessions Judge of Pabna Kushtia, recommending the setting aside of the order made on 30‑6‑61, by Mr. P. K. Sammadar, Magistrate 1st Class, Sirajganj. It appears from the letter of Reference that on 4‑1‑61 the oppo site‑party as first party filed a petition before the Sub‑Divisional Magistrate, Sirajganj, alleging an obstruction on a public pathway in December 1960. The learned Magistrate asked the petitioners who were second party before him to remove the obstruction and to show cause by 25‑1‑61. The petitioners appeared on that day, but the Magistrate issued a fresh notice giving necessary parti culars of the pathway, and also directed removal of obstruction. They were again asked to show cause by 13‑2‑61.

2. The learned Magistrate did not question the petitioners as to whether they denied the existence of any public right of way over the land as required under section 139‑A of the Code of Criminal Procedure. The recommendation of the learned Judge is based on non‑compliance with the requirements of the said section 139‑A of the Code of Criminal Procedure, and the existence of the alleg ed obstruction for a long time.

3. Mr. D. L. Rahman, the learned Advocate appears in support of the Reference and Mr. Sultan Ahmad, learned Advocate appears in opposition to the same.

4. Chapter X of the Code of Criminal Procedure deals with public nuisance and it begins with section 133 which, broadly speaking, provides for expeditious action by a Magistrate on receipt of an information of obstruction of a public way, river or such other public places. The Magistrate is authorised to make a conditional order on the persons responsible for obstruction for removal of the same or to appear on a fixed date, and to show cause against the impugned order under section 135 of the Code. Next step in the proceeding is provided in section 139. As soon as the person on whom an order under section 133 of the Code has been made appears before him, the Magistrate is required under the said section 139 to question him as to whether the existence of a public right in respect of the place in question is denied by him. In case of denial, the Magistrate is to proceed to enquire into the matter in accordance with provisions of section 137 or 138, the Code of Criminal Procedure before making a final order.

5. In the case before me, although the Magistrate omitted to put the question as required under the said section of 139‑A of the Code, petitioners denied the existence of a public right over the disputed place and adduced evidence to that effect, and after the said enquiry the final order had been made. From the scheme of the law, as indicated above, omission to put the question as contemplated under section 139‑A does not appear to be an illegality. It seems to me to be an irregularity curable under section 537 of the Code of Civil Procedure.

6. Contrary view, seems to have been expressed in Sheikh Sadir and others (29 C W N 649) as relied on by Mr. Rahman. In that case the learned Judge observed that the Magistrate was bound to put the question as required under section 139‑A of the Code but did not clearly indicate if the omission so to do would amount to illegality or irregularity. In Abdul Latif v. The State (P L D 1958 Kar. 513), such an omission to put the question as is contemplated under section 139‑A of the Code, has been held to render the impugned order illegal in the following terms:‑----

"The learned Magistrate had not questioned the appellant as to whether he denied the existence of any public right in respect of the place where the mills are situated, and, since he had to proceed under section 137, Criminal Procedure Code, only after making inquiry as contemplated by the provision of section 139‑A (1) of Cr. P. Code, the action taken by the Magistrate becomes illegal."

7. Mr. Sultan Ahmed has, however, relied on the case of Ramkripal Singh and another v. Superintendent, Way and Works E. I. R., Gaya (A 1 R 1945 Pat. 309). In that case it was held that it was unnecessary for the Magistrate to put any question when a party, directly upon appearance, had put in a statement denying the existence of any public right, and the following observation of Meredith, J., may be usefully quoted here:‑---

"Mr. De's other point is a technical one. He says that the second party upon appearance was not questioned by the Magis trate as to whether he denied the existence of any public right, as required by section 139‑A. The answer is that in this parti cular case it was unnecessary for the Magistrate to put any such question because the second party directly upon appearance put in a statement anything the existence of any public right. To require the Magistrate to question a party as to whether he intended to do what he had already done without being asked, would be, in my judgment, to quote the words of Sir George Rankin in a well known case "to pile technicality upon unreason."

In this case, the learned Judge has clearly indicated that he does not consider it an illegally and he thinks whether any interference is called for or not is to be decided on facts of each case. If a party, although not questioned, denies the existence of a public right, the omission to put the question would be considered a technical error for which no interference, according to Meredith, J. was called for. In Rajani Kanta Roy v. Ibrahim Sarkar (A I R 1929 Cal. 507), a Division Bench of the Calcutta High Court, consisting of Suhrawardy and Graham, JJ., reached the conclusion that an omission to put a question as required under section 139‑A is an irregularity and not an illegality. Suhrawardy, J., in that case observed as follows:‑--

"The object with which section 139‑A was enacted seems to be that where the existence of the public right is denied the Magistrate has to make an enquiry. If it is not denied, then the section hardly seems to apply. But it may be said that the dispute between the parties is whether the land over which the obstruction is made is part of public river and thus attracts the application of section 139‑A. Even if it be so, when the peti tioner appeared before the Magistrate and denied that it was part of the public river there was no necessity for putting a formal question to him and the subsequent procedure followed by the Magistrate was as indicated in clause 2 of the section, and the final order passed was under section 137 since the obstruction was admitted. The omission at the most is an irregularity which is covered by section 537, Criminal Procedure Code."

8. This point also came to be considered in the case of Sukh Ram Kalu. Ram v. Manohar Lal Ramsaran Dass (A I R 1960 Punj. 377). In that case the learned Judge expressed his agreement with the observations made in the cases cited above in A I R 1945 Pat. 309 and also with A I R 1929 Cal. 507 and observed as follows :‑-----

"The written statement having been filed and an inquiry having actually been held by the Magistrate, the failure, if any, to strictly and meticulously comply with the technicalities of section 139‑A would also, in my opinion, be curable under section 537 of the Code of Criminal Procedure."

The next case relevant for the determination of this question is Kishorilal v. State through P. W. D. District Engineer, Jalaun at Oral (A I R 1960 All. 244). It was held in that case as follows :‑--

"It is obligatory on the Magistrate to first of all conduct an inquiry under section 139‑A, Criminal Procedure Code in cases where the existence of any public right in respect of any way or place is denied before holding the inquiry under section 137 or section 138. But an irregularity committed by not following the procedure laid down under section 139‑A, could be cured by invoking the aid of section 537."

9. Preponderance of authorities is in favour of the views that it is an irregularity curable under section 537 and I respectfully agree with the same. In view of the timely denial of the existence of the public right over the pathway. I do not consider that there has been any prejudice in the case.

10. But it seems to me that the facts have not been properly assessed by the learned Magistrate and the conclusions reached by him seem to me to be abrupt.

11. The second point is that the obstruction must be shown to be a recent one and it is said to have taken place in December 1960, and this petition of complaint was filed on 4‑1‑61. There fore, if the observation as alleged took place in December 1960, there is no doubt that they came to the Court soon after causing of the obstruction and in that case, it has to be considered a recent occurrence. The case relied on by the learned Judge in this respect in making the reference is one reported in 8 D L R 298. In that case Chakraborty, J., found the petitioner did not take any action for long 8/10 years and, therefore, there was no emer gency for which the Magistrate was justified in acting under section 133, and I respectfully agree with that view, but on the facts as presented in this case it cannot be said as stated above that this is not a matter of recent occurrence.

12. On the face of the defence taken by the opposite‑party to the effect that they were in occupation of that premises for a long time, the learned Magistrate ought to have directed his mind fully to that question and come to a clear finding in this behalf. The matter should be more thoroughly gone into by the trial Court and a finding arrived at after proper application of mind, and if it is found that the obstruction took place actually in December, 1960, the case reported in 8 D L R does not apply to this case and the learned Magistrate has jurisdiction to proceed with the case.

13. On the ground of non‑application of mind as indicated above, the case is to be sent back for rehearing in accordance with law, and since the case is going back on remand, the Magistrate will now comply with the requirements of section 139‑A of the Code of Criminal Procedure.

In the result, the Reference is accepted, the order dated the 30th June 1961, is set aside and the case is sent back for hearing the parties afresh by some other Magistrate in accordance with law from the stage where it was immediately after the 25th January 1961.

S. Q./K. B. A. Reference accepted.

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