ORDER
(1) The record of this case has been forwarded to this Court by the learned Additional Sessions Judge, Rohtak, with a recommendation that the order of the learned Sub-Divisional Magistrate, Rewari, dated 6th of March, 1959, be set aside and the learned Magistrate be directed to try the case according to law afresh.
(2) Ch. Ram Sarup has appeared before me in support of the reference and Mr. V. P. Prashar has opposed the recommendation. On a perusal of the record I find that Shri Manohar Lal had made an application under section 133, Code of Criminal Procedure, against Sukh Ram Singh, Sarpanch of village Gangaicha Ahir, to which he complainant also belongs. The allegations contained in the application are that Sukh Ram Singh had made an unlawful obstruction on a public thoroughfare by constructing a chabutra and this had narrowed down the thoroughfare.
After recording preliminary evidence, the learned Magistrate issued a conditional order in pursuance of which Sukh Ram Singh Sarpanch submitted a written statement denying he unlawful obstruction as well as the existence of any pubic right in respect of the thoroughfare in question. The respondent, according to the learned Magistrate, was asked to lead evidence in support of his denial as required by section 139A of the Code of Criminal Procedure. Sukh Ram Singh Sarpanch in support of his plea, produced a resolution of the Panchayat by which the construction of this Chabutra was sanctioned and started and also led evidence that the impugned construction did not cause any obstruction to the thoroughfare.
R. W. 1 Debi Sahai and R. W. 2 Parbhati Lal supported the denial of obstruction to the thoroughfare. Manohar Lal also produced evidence I support of his case. The learned Magistrate, after considering the entire evidence, observed that the respondent's plea that the Panchayat had made the obstruction did not exonerate him or the Panchayat from making an unlawful construction which obstruct the thoroughfare and thereby causes inconvenience to the public in general; the fact of construction of the chabutra having been admitted by Sukh Ram Singh Sarpanch, the inconvenience resulting from the said construction was considered by the learned Magistrate to be amply established.
The Magistrate also expressly observed that the evidence led by Sukh Ram Singh was not sufficient to lead tot he conclusion that there was no existence of the public right as alleged. Then comes the observation that Gram Panchayat had been constituted for the uplift of the villages and not for creating troubles, and that the Sarpanch in the present case had taken undue advantage of his position. With these remarks the conditional order issued by the learned Sub-Divisional Magistrate on18th of August, 1958, was made absolute under section137(3) of the Code of Criminal Procedure and Sukh Ram Singh was directed to remove the obstruction within fifteen days.
(3) The matter was taken up by way of revision to the Court of the learned Additional Sessions Judge, Rohtak, who after hearing the counsel and going through the record, observed that the learned Sub-Divisional Magistrate had not complied with the provisions of section 139A of the Code of Criminal Procedure which provides that before the Magistrate proceeds o record evidence under seciton137 of the Code of Criminal Procedure, he has to ascertain, whether the person to whom a notice is issued, denies the existence of the public right and if it so denied then the Magistrate is required to inquire whether there is any reliable evidence in support of such denial.
The learned Additional Sessions Judge has remarked that the evidence of Sukh Ram Singh Sarpanch in support of his denial should have been recorded first and a decision given whether the encroachment had been made by him and whether there was o reliable evidence in support of the denial of the public right; according to him proceedings under S. 137 of the Code of Criminal Procedure could not be taken without giving a decision on the aforesaid two points. The leaned Additional sessions Judge has also noted the remark made by the Sub-Divisional Judge has also noted the remark made by the Sub-Divisional Magistrate in his order that 'the Panchayats have been constituted for the uplift of villages and not for creating troubles.'
The learned Magistrate, according to the learned Additional sessions judge, appeared to have overlooked the fact that the Gram Panchayat was no party to the proceedings and therefore the aforesaid remarks against the Panchayat could not be properly made. The learned Judge also criticized the learned Sub-Divisional Magistrate for not adjudicating upon the point whether the proceedings under section 133 of the Code of Criminal Procedure could be taken against the Panchayat. On these grounds, according to the learned Additional Sessions Judge, the order of the learned Magistrate could not be legally supported.
(4) Mr. Prashar has, in opposing the reference, submitted that in fact the learned Sub-Divisional Magistrate has complied with the provisions of Section 139-A of the Code of Criminal procedure inasmuch as he has given an opportunity to Sukh Ram Singh Sarpanch to adduce evidence in support of his denial of the existence of public right and has also given an express finding in the following words:
'The evidence produced by the respondent, in support of denying the existence of public right of passage is not sufficient to come to the conclusion that there is no existence of public right.'
(5) Mr. Prashar has also submitted that if an obstruction has actually been created by Sukh Ram Singh, then merely because the Panchayat has directed him to create the obstruction would be no defence in a Court of law. The learned counsel has also submitted that in fact there was no denial of a public right by Sukh Ram Singh, but on this point the learned counsel does no seem to be right. From the reply filed by Sukh Ram Singh it is clear that he denied both the obstruction and the existence of a thoroughfare. Indeed he actually claimed that the ownership of the site in question vested in the Panchayat and asserted that at it had nothing to do with any thoroughfare. This plea has, implicit in it, the denial of he existence of public right.
(6) Ch. Ram Sarup has, in addition to the grounds mentioned in the order of the learned Additional Sessions Judge, drawn my attention to section 104 of the Gram Panchayat Act which is in the following terms:--
'(1) No suit or other legal proceedings in a civil or criminal Court shall lie against any Panch in respect of any Act done in good faith under this Act.
(2) No civil or revenue suit or proceedings shall lie against any Gram Panchayat in respect of any Act done in the discharge of any of its duties imposed under this Act.'
The counsel has contended that whatever Sukh Ram Singh Sarpanch did has been done by him on behalf of the Panchayat, and that no legal proceedings in a criminal Court should be taken against him in respect of an Act done by him in good faith under the aforesaid Act. He has also, in this connection, drawn my attention to certain resolutions passed by the Panchayat and laced on there cord of this case, which prove sanction for the construction of a chabutra alongside of Panchayat Reading Room; this chabutra was really meant to provide an open space for persons to sit.
The counsel has also drawn my attention to an unreported case decided by Mr. Justice J. L. Kapur in which it was observed that no Magistrate can arrogate to himself the functions of a civil Court and that such was the bar created in section 139A (2) of the Code of Criminal Procedure. In that case, the learned Magistrate had, in spite of a denial, proceeded to adjudicate upon the rights of the parties, and came to a conclusion that there was a public path which had in fact been obstructed by the construction put up by the opposite party (see Sardara Singh v. Basta Singh Criminal Revn. No. 1266 of 1953, D/- 28-12-1953).
Mr. Prashar has, on the other had, relied on Ramkripal Singh v. Superintendent, Way and Works, E. I. Rly, Gaya, AIR 1945 Pat 309 where omission on the part of the Magistrate to question the second party about the existence of any public right was held to be immaterial when the party had put in a statement denying the existence of any public right. He has also relied on Rajani Kanta Roy v. Ibrahim Sarkar, AIR 1929 Cal 507, in which section 537 of the Code of Criminal Procedure was held to apply where Magistrate had not complied with the provisions of section139A of the Code.
(7) After considering the respective contentions of the learned counsel and after going through the record, in my opinion, there was no material non-compliance with the provisions of section139A of the Code of Criminal Procedure. 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 section139A would also, in my opinion be curable under section 537 of the Code of Criminal Procedure. The Magistrate has given an express finding that the evidence led by Sukh Ram Singh Sarpanch was not satisfactory.
I, however, think that the other question, which relates tot he impugned construction having been made under the authority of and on behalf of the Panchayat, has been disposed of by the learned Magistrate in a highly superficial and perfunctory manner. If Sukh Ram Singh Sarpanch had done nothing in his personal capacity and of his own free volition, but was instrumental in carrying out a construction in the capacity of Sarpanch as desired by the Panchayat, then it is a question for the Magistrate to consider whether he can still be directed to remove the said construction because it is only the person causing such obstruction who can be ordered to remove it.
I am leaving this question open because the point has not been fully and properly debated, at the Bar, in this Court. The learned Magistrate may have to decided this question after hearing he parties. I am also not sure if the evidence led by Sukh Ram Singh Sarpanch could properly be considered not to be reliable enough so as to justify confirmation of the conditional order. But on this part of the case also no arguments have been addressed to me. I would, therefore, abstain from expressing any considered opinion in these proceedings, on this question as well, leaving it to the Magistrate to come to its own conclusion.
(8) With respect to the applicability of section 104 of the Gram Panchayat Act, it has to be borne to mind that the Act done by the Gram Panchayat in order to fall within the purview of this section must be one done in the discharge of his duties supposed under this Act; similarly the exemption claimed by a Panch must also be in respect of an Act done in good faith under the said Act. The Gram Panchayat not being a party, obviously no order could be passed under section 133 or 139A of the Code of Criminal Procedure, but as is obvious, no such order has in fact been passed by the learned Sub-Divisional Magistrate.
Manohar Lal has not claimed any order against the Gram Panchayat and if the Magistrate comes tot he conclusion that Sukh Ram Singh Sarpanch has not caused any obstruction with in the purview of section133 of the Code of Criminal Procedure, then obviously the application against him will have to be dismissed, leaving it open to Manohar Lal to take such further action as he considers proper against the Panchayat. In case the learned Magistrate comes to a finding that Sukh Ram Singh Sarpanch is himself responsible for causing obstruction, and that the Panchayat could not lawfully order the construction of the chabutra, so as to obstruct the thoroughfare, the Magistrate would then be justified in passing the necessary orders in accordance with law.
(9) In view of the above discussion, I am constrained to set aside the order of the learned Magistrate and direct him to come to a fresh decision in accordance with law and in the light of the observations made above. It would certainly be open to him to consider whether or not there is reliable evidence in support of the denial put forward by Sukh Ram Singh Sarpanch, on which question I express no considered opinion at this stage.
I must, however, point out that reliable evidence does not mean evidence which is sufficient to establish a title to the land, for in that case reference to civil Court as contemplated by section 139A (2) would become unnecessary and meaningless. I may also observe that the provisions of section139A of the Code of Criminal Procedure do not contemplate examination of evidence of the complainant of rebutting or contradicting the evidence led by the opposite party under this section, though recording of the complainant's evidence would not by itself render the proceedings wholly illegal.
(10) For the aforesaid reason, I would set aside the order of the learned Sub-Divisional Magistrate and send the case back to him for a fresh decision according to law.
(11) Case remanded.