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Criminal Reference No. 25 of 1961, decided on 28th March 1961.

S. 139‑A(1) read with S. 133‑"Enquire into the matter"‑Means hearing of evidence of persons summoned under S. 133.

S. 539‑B read with S. 133‑"Local inspection"‑Permitted only for appreciation of evidence and cannot replace evidence.

Badrul Haider Chowdhury in support of the Reference.

A. F. M. Mesbahuddin and A. Malin Khan Chowdhury in Opposition to the Reference.

The only question raised in this reference is whether a Magistrate to whom proceeding under section 133 of the Code of Criminal Procedure has been transferred for disposal after the party concerned bad appeared and shown cause against the conditional order denying, inter alia, the existence of the alleged public right, is legally competent to drop the proceedings, without taking any evidence, solely on the result of the local inspection held by him. What has happened is that on the complaint of the first party that the second party was about to obstruct a khal which serves as a public drain as well as passage and after enquiry caused to be made thereafter by different agencies including a Magistrate, the learned Sub‑Divisional Magistrate made conditional order requiring the second party (opposite party here) to remove the obstruction or appear and show cause against the order. In response to that notice the second party appeared and showed cause denying existence of the alleged public right. The learned Sub‑Divisional Magistrate thereafter trans ferred the case to the learned Magistrate against whose order the present Reference is directed for disposal. The said trans feree Magistrate appears to have later held a local inspection and thus, without taking any evidence, dropped the proceeding on the result of the inspection held by him. Being aggrieved at this, the first party‑petitioner moved the learned Sessions Judge in revision. The revisional application was ultimately heard by one of the Additional Sessions Judges who has, in turn, made the present Reference and submitted the records of the case with his report for orders of this Court.

2. Mr. A. F. M. Mesbahuddin, Advocate, with Mr. A. Matin Khan Chowdhury, Advocate, appearing in opposition to the Reference has tried to justify the impugned order of the learned Magistrate on the contention that for the purpose of the inquiry contemplated by subsection (1) of section 139 A of the Code of Criminal Procedure the Magistrate is not bound to take evidence and is fully competent to drop the proceeding, as has been done in this instance, on the result of the local inspection held by him. Mr. Badrul Haider Chowdhury, counsel, appearing in support of the Reference, has, on the other hand, argued that for the purpose of an enquiry under the provisions referred to above, the Magistrate is bound to take evidence and that, in any view of the matter, and order passed by the Magistrate dropping the proceeding solely on the basis of the local inspection held by him is unwarranted and cannot, accordingly, be supported in law.

3. Mr. Mesbahuddin has, in support of his contention, relied upon the cases of Sibte Husain and another v. Emperor (A I R 1937 All. 795), Jogendra Nath Nandhi and others v. Rarkhal Das Banerjee (14 C W N exci. (Note)) and Ramu alias Langer through Bahiron v. Nurli Das (A I R 1943 All. 19). So far as the first two cases are concerned, these are not at all to the point, the proposition laid down therein being that the Magistrate has unfettered discretion to decide whether he should or should not draw a proceeding under section 133 of the Code of Criminal Procedure and cannot be compelled by a private party to initiate such a proceeding. In the third case (A I R 1943 All. 19) which is a Single Judge decision of the Allahabad High Court, the learned Judge (Allsop, J.) has expressed the view that although section 139‑A of the Code of Criminal Procedure enjoins an inquiry and requires the Magistrate to find if there is or is not reliable evidence in support of the denial of the alleged public right, "it is surely open to the Magistrate at any stage for good reasons shown to refuse to take any further action in the matter." In the report the facts of the case are not at all stated and it is, therefore, not possible to as certain the circumstances under which the pro ceedings were dropped by the learned Magistrate in that case. Further the observation that, "It is surely open to the Magistrate at any stage for good reason shown to refuse to take any further action in the matter" appears to be in the nature of an obiter. Moreover, the scheme of the different sections governing a proceeding under section 133 of the Cod of Criminal Procedure appears to be that once such a proceeding has been drawn up it shall be allowed to run its prescribed course in accordance with the procedure laid down therein. Under those provisions a Magistrate holding an inquiry under subsection (1) of section 139‑A, is empowered to stay such a proceeding under subsection (1) if he finds that there is reliable evidence in support of the denial. Similarly, the Magistrate is empowered to drop the proceeding under subsection (2) of section 137 only if after taking evidence as enjoined under subsection (1) thereof he is satisfied that the conditional order passed in the case is not reasonable and proper. There appears to be no other provision authorizing the Magistrate either to stay or to drop a proceeding under section 133 otherwise or at any other stage. That being the position, an order either staying or dropping a proceeding under section 133, except in accordance with the provisions of subsection (2) of section 139‑A or subsection (1) of section 139‑A or under subsection (2) of section 13 7, can neither stay nor drop the proceeding except at the stage contemplated by, and in accordance with, the provisions laid down in subsection (2) of each of the said two sections.

4. The learned counsel appearing for the first party has, on the other hand, cited in support of the proposition that a Magistrate is bound to take evidence in an inquiry under subsection (1) of section 139‑A of the Code of Criminal Procedure, a number of authorities of which mention may be made of Thakur Sao v. Abdul Aziz (I L R 4 Pat. 783). Therein it has been held

"The procedure laid down in section 139‑A of the Code of Criminal Procedure, 1898, requires, first, that the party against whom a provisional order has been made, 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."

5. It follows that the Magistrate has to make his decision as to the denial of the alleged public right upon some reliable evidence and is also required to see that such evidence is legal evidence. Section 139‑A, subsection (1), lays down that if the party against whom the conditional order has been made denies on appearance the existence of the alleged public right, the Magistrate shall before proceeding under section 137 or section 138 enquire into the matter, the words "enquire into the matter" fn the above‑mentioned, section mean that the Magistrate is to hear any evidence thata person, on whom a notice under section 133 has been served, wants to adduce before proceeding further. This appears also to be clearly implied in subsection (2) where under the Magistrate is required, for the purpose of making his decision as to the plea of denial of the alleged public right, to find either that there is reliable evidence or that there is no such evidence in support of the denial. Thus the Magistrate is evidently required for the purpose of deciding as to what step he is to take next to find if the denial of the alleged public right is or is not supported by reliable evidence and this duty cast upon him cannot be said to be discharged properly or in accordance with the law if he were to drop the proceeding without taking any evidence at all. It is true that the inquiry contemplated by subsection (1) of section 139‑A of the Code of Criminal Procedure is of a summary nature and nothing is also laid down in the Code as to the form which that enquiry should take but this arrears to be settled beyond controversy that the Magistrate's decision has to be based upon evidence. In the present instance, the learned Magistrate has not taken any evidence and has dropped the proceeding as on the basis of the local inspection held by him he appears to be of the opinion that the denial is supported by reliable evidence. Local inspection is provided for in section 539‑13, subsection (1), which lays down:

"Any Judge or Magistrate may at any stage of any inquiry, trial or other proceeding, after due notice to the parties visit and inspect any place in which an offence is alleged to have been committed, or any other place which it is in his opinion necessary to view for the purpose of properly appreciating the evidence given at such inquiry or trial, and shall without unnecessary delay record a memorandum of any relevant facts observed at such inspection."

As is clear from the language of the section itself, a local inspection is only permitted for the purpose of properly 7 appreciating the evidence in the case and cannot take the place of the evidence itself. That being so, the impugned order passed by the learned Magistrate is really based on no evidence a all. As has been held in the case of Thakur Sao v. Abdul Aziz, already cited above, the Magistrate must base his decision on reliable evidence and such evidence must further be legal evidence. Reference may also be made to the case of Mulchand 32 Cr. L J 1165 wherein it has been held that where the Magistrate neither asked the defendant as to whether he denied the existence of a public right nor took any evidence but passed the order on a mere local inspection, the order passed by the Magistrate is illegal. This appears to be on all force with the facts and circumstances of the present case. In my opinion, therefore, the order complained of dropping the proceeding cannot be supported in law.

6. In the result, the Reference is accepted, the order dropping the proceeding is set aside and the case sent back for being proceeded with and disposed of in accordance with law by some other Magistrate.

S.B./A.H.

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