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Criminal Reference No. 9 of 1964, decided on 9th July 1964.

Ss. 133 & 137--Public nuisance‑Order under S. 133‑Magistrate not competent to drop proceedings on mere denial of allegations by opposite‑party -Recording of evidence obligatory.

Subsection (1) of section 137 of the Criminal Procedure Code, 1898 makes it obligatory on the Magistrate to take evidence before taking action either under subsection (2) or sub section (3) of section 137 of the Code. When the opposite -party appears before him to show cause against the order made earlier under section 133 of the Code, it is mandatory on the Magistrate to record evidence. The Magistrate is not competent to drop the proceedings by merely referring to some papers on the file which had not been properly brought on the record as proved evidence. Failure of Magistrate to record evidence is a serious defect in the procedure which vitiates the order.

I L R 4 Pat. 783; Bazal Ahmed Sowdagar v. Nur Muhammad Sowdagar P L D 1963 Dacca 852; The State v. Muhammad Jamil and others P L D 1960 Kar. 555 and Govinda Goundan and others v. Aye Goundan and another A I R 1939 Mad. 465 ref.

A. H. Md. Shariful Islam for the Complainant.

Md. Latifur Rahman for the Accused.

This is a Reference by Mr. F. A. Ahmed, Sessions Judge Jessore, recommending that the order made by the Sub‑Divisional Magistrate, Jessore on 19‑10‑1963, should be set aside.

It is stated in the letter of Reference that petitioner Mr. Afzaluddin Biswas submitted an application under section 133 of the Code of Criminal Procedure stating that the opposite -party Dwijendra Nath Das obstructed a public pathway. The Magistrate directed the opposite‑party to show cause on 19‑10‑1963. On that date the learned Magistrate made the impugned order which is in the following terms:

"Both the parties are present. 2nd‑party denies the public right over the pathway which exclusively belongs to the local Baptist Mission. Seen papers. I am satisfied. The proceed ing is dropped." Mr. A. H. Muhammad Sharif ul Islam who appears in support of the reference submits that the learned Magistrate made the impugned order without recording any evidence on the denial of the allegation made against the opposite‑party and as such it is illegal.

This contention of the learned Advocate must be accepted. Section 137 of the Code is in the following terms:

"(1) If he appears and shows cause against the order, the Magistrate shall take evidence in the matter as a summons case.

(2) If the Magistrate is satisfied that the order is not reasonable and proper, no further proceedings shall be taker in the case.

(3) If the Magistrate is not satisfied the order shall be made absolute."

Subsection (1) of section 137, therefore, makes it obligatory on the Magistrate to take evidence before taking action either under subsection (2) or subsection (3) of section 137 of the Code. The impugned order as quoted above shows that the learned Magistrate examined some papers. He has given no indication whatsoever as to what papers he had seen and how they came on record.

Mr. Latifur Rahman, the learned Advocate who appears to oppose the reference frankly concedes that no papers were legally proved or marked as exhibits in the case. He, however, submits that the learned Magistrate nevertheless appears to have inspected the documents produced by the parties and having been satisfied on perusal of the same, dropped the proceedings. Mr. Rahman, therefore, submits that this irregularity should be condoned and the Reference rejected.

A judicial proceeding must be conducted in accordance with law and papers cannot be allowed to go into the record unless they are proved. In this matter it is clear that the learned Magistrate relied on these papers although they were not brought legally on record.

Plain reading of section 137 indicates that the clear intention of the Legislature is that evidence shall be taken on the denial by the opposite‑party about the allegation of obstruction of a public pathway. In support of this view reliance has rightly been placed by Mr. Islam on a Division Bench decision of the Patna High Court reported in the I L R 4 Pat. 783. In that case Mullick, J. observed as follows:

"The law, therefore, requires, first, that the party shall appear before the Magistrate and deny the existence of the public right in question. Secondly that he shall produce some reliable evidence, and, thirdly, that such evidence shall be legal evidence and shall support the denial. If these three conditions are satisfied, then the Magistrate's jurisdiction ceases to exist."

Reliance has also been placed on the case of Bazal Ahmed Sowdagar v. Nur Muhammad Sowdagar (P L D 1963 Dacca 852). In that case it was held by Ali, J. that a Magistrate was not competent to drop a proceeding under section 133 of the Code without taking evidence a required by law. To the same effect is the decision in the case B of The State v. Muhammad Jamil and others (P L D 1960 Kar. 555). It was held in that case that the failure of the Magistrate to record evidence was a serious defect in the procedure which vitiated the order. This case seems to have a precise application of the facts of the case before me and the following observation made by Haq, J. in this case will make the position clear:

"I think it was mandatory for the Magistrate to record evidence as in a summons case when the Opponent had p appeared before him to show cause against the order made earlier under sections 133 and 142 of the Cr. P. C. As it is the learned Magistrate has referred to several documents in his order dropping the proceedings, but those documents have not been properly brought on the record as proved evidence. This is a serious defect in the procedure which vitiates the proceedings and consequently the order passed by the Magistrate."

In the case of Govinda Goundan and others v. Aye Goundan and another (A I R 1939 Mad. 465) it was held that in a proceeding under section 133 of the Code if it was claimed by the opposite‑party that the pathway in question was in his private possession, the Magistrate would be required to take evidence and decide as to the existence of public right in the place.

In the case before me it is clear that the learned Magistrate has not complied with the requirements of law. The impugned order must, therefore, be set aside and he should now proceed to take evidence. He is however, free to reach such conclusions on fact as he deems fit and proper.

In the result, the Reference is accepted and the impugned order is set aside and the case is remanded to the Magistrate to proceed with the same in accordance with law in the light of the observations made above.

K. B. A. Reference accepted.

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