Ram Kishor Prasad Vs. State of Bihar and ors. - Court Judgment

Excerpt:
- - the sub divisional magistrate, thereafter, on getting the report of the anchal adhikari and being satisfied regarding obstruction of a public passage, directed both the parties to file show cause. 6. in my view, undisputedly as would appear from the ratio in the abovementioned case as well as the provisions of sections 133 to 138 of the code, in a case where there is a denial of the existence of a public passage, it will be incumbent upon the magistrate to be satisfied after holding enquiry that there is obsetruction of the public passage before recording an order of removal of encroachment, as provided under section 138 of the code. it would further appear that the learned magistrate before examining the witnesses of the parties, had also got the matter enquired into through the anchal adhikari and after being satisfied on his report, he proceeded to deal with the matter to find out whether there was any material to record an order under section 138 of the code. 8. true it is as would appear from section 137 of the code, when there is a denial of the existence of any public right in respect to the water, river, channel, the magistrate at first instance will have to be satisfied on enquiry regarding existence of such a right and thereupon be shall proceed under section 138 of the code to take evidence of the parties. and thereafter, on being satisfied regarding existence of a public right, he proceeded to examine witnesses of the parties and thereafter, ultimately recorded the order lor removal. n. pandey, j.1. this is a petition under section 482 of the code of criminal procedure, in short 'the code', for quashing the order of the ist additional sessions judge, arrah dt. 24-2-1999 in cr. revision no. 219 of 1998, whereby and whereunder, he set aside the order of the sub divisional magistrate, piro, arrah, passed under section 133 of the code. having heard the parties, this application is being disposed of at this stage itself.2. it would appear from the materials on record that land encroachment case no. 3 of 1991-92 was started before the anchal adhikari alleging obstruction of a public passage against the opposite parties. the anchal adhikari having enquired into the matter, by order dated 20-9-1991 directed the opposite parties to immediately remove the obstruction. but in spite of the order of the anchal adhikari when opposite parties did not remove the obstruction, a petition was filed on behalf of the petitioner before the sub divisional magistrate under section 133 of the code, which was ultimately referred to the anchal adhikari for a report. the sub divisional magistrate, thereafter, on getting the report of the anchal adhikari and being satisfied regarding obstruction of a public passage, directed both the parties to file show cause.3. feeling aggrieved against the aforesaid order, the opposite parties filed revision no. 145 of 1993 before the sessions judge, questioning the jurisdiction of the magistrate, but the said revision petition was dismissed on 5-5-1994 and thereafter, the case in question proceeded.4. undisputedly as would appear from the order of the sub divisional magistrate dated 22-9-1988, both the parties examined several witnesses and also produced relevant documents in support of their claim over the land in question. thereafter, the matter was heard and ultimately the sub divisional magistrate having found that opposite parties had wrongfully obstructed the public passage, directed them to remove the encroachment. however, as stated above, the said order was set aside by the sessions judge on the solitary ground that the procedure as laid down under section 137 of the code was totally ignored before recording an order for removal of encroachment under section 138 of the code.5. learned counsel for the petitioner contended that in view of the provisions of sections 137 and 138 of the code as also having regard to the ratio, laid down by this court in the case of brahmdeo singh v. indradeo singh, 1984 cri lj 300, before recording a final order of removal under section 138 of the code, it is mandatory on the part of the magistrate to hold an enquiry. because the moment there is a denial of existence of any public right, the magistrate has to enquire into that question before proceeding to deal with the matter under section 138 of the code.6. in my view, undisputedly as would appear from the ratio in the abovementioned case as well as the provisions of sections 133 to 138 of the code, in a case where there is a denial of the existence of a public passage, it will be incumbent upon the magistrate to be satisfied after holding enquiry that there is obsetruction of the public passage before recording an order of removal of encroachment, as provided under section 138 of the code.7. in this case from a bare reference to the order of the sub divisional magistrate it would appear that many witnesses were examined on behalf of the parties in support of their cases. it would further appear that the learned magistrate before examining the witnesses of the parties, had also got the matter enquired into through the anchal adhikari and after being satisfied on his report, he proceeded to deal with the matter to find out whether there was any material to record an order under section 138 of the code. therefore, the finding of the additional sessions judge appears not correct that the order of the sub divisional magistrate was recorded without holding enquiry as required under section 137 of the code.8. true it is as would appear from section 137 of the code, when there is a denial of the existence of any public right in respect to the water, river, channel, the magistrate at first instance will have to be satisfied on enquiry regarding existence of such a right and thereupon be shall proceed under section 138 of the code to take evidence of the parties. therefore, to my mind, the enquiry as contemplated under sub-section (2) of section 137 of the code will not necessarily mean the examination of witnesses in detail. in the present case, i have already noticed that the magistrate had got the matter enquired into by the anchal adhikari after spot verification etc. and thereafter, on being satisfied regarding existence of a public right, he proceeded to examine witnesses of the parties and thereafter, ultimately recorded the order lor removal.9. therefore, in my view, for the reasons, stated above, the impugned order of the learned additional sessions judge cannot sustain and the same is hereby quashed.

Judgment:

N. Pandey, J.

1. This is a petition under Section 482 of the Code of Criminal Procedure, in short 'the Code', for quashing the order of the Ist Additional Sessions Judge, Arrah dt. 24-2-1999 in Cr. Revision No. 219 of 1998, whereby and whereunder, he set aside the order of the Sub Divisional Magistrate, Piro, Arrah, passed under Section 133 of the Code. Having heard the parties, this application is being disposed of at this stage itself.

2. It would appear from the materials on record that Land Encroachment Case No. 3 of 1991-92 was started before the Anchal Adhikari alleging obstruction of a public passage against the opposite parties. The Anchal Adhikari having enquired into the matter, by order dated 20-9-1991 directed the opposite parties to immediately remove the obstruction. But in spite of the order of the Anchal Adhikari when opposite parties did not remove the obstruction, a petition was filed on behalf of the petitioner before the Sub Divisional Magistrate under Section 133 of the Code, which was ultimately referred to the Anchal Adhikari for a report. The Sub Divisional Magistrate, thereafter, on getting the report of the Anchal Adhikari and being satisfied regarding obstruction of a public passage, directed both the parties to file show cause.

3. Feeling aggrieved against the aforesaid order, the opposite parties filed Revision No. 145 of 1993 before the Sessions Judge, questioning the jurisdiction of the Magistrate, but the said revision petition was dismissed on 5-5-1994 and thereafter, the case in question proceeded.

4. Undisputedly as would appear from the order of the Sub Divisional Magistrate dated 22-9-1988, both the parties examined several witnesses and also produced relevant documents in support of their claim over the land in question. Thereafter, the matter was heard and ultimately the Sub Divisional Magistrate having found that opposite parties had wrongfully obstructed the public passage, directed them to remove the encroachment. However, as stated above, the said order was set aside by the Sessions Judge on the solitary ground that the procedure as laid down under Section 137 of the Code was totally ignored before recording an order for removal of encroachment under Section 138 of the Code.

5. Learned counsel for the petitioner contended that in view of the provisions of Sections 137 and 138 of the Code as also having regard to the ratio, laid down by this Court in the case of Brahmdeo Singh v. Indradeo Singh, 1984 Cri LJ 300, before recording a final order of removal under Section 138 of the Code, it is mandatory on the part of the Magistrate to hold an enquiry. Because the moment there is a denial of existence of any public right, the Magistrate has to enquire into that question before proceeding to deal with the matter under Section 138 of the Code.

6. In my view, undisputedly as would appear from the ratio in the abovementioned case as well as the provisions of Sections 133 to 138 of the Code, in a case where there is a denial of the existence of a public passage, it will be incumbent upon the Magistrate to be satisfied after holding enquiry that there is obsetruction of the public passage before recording an order of removal of encroachment, as provided under Section 138 of the Code.

7. In this case from a bare reference to the order of the Sub Divisional Magistrate it would appear that many witnesses were examined on behalf of the parties in support of their cases. It would further appear that the learned Magistrate before examining the witnesses of the parties, had also got the matter enquired into through the Anchal Adhikari and after being satisfied on his report, he proceeded to deal with the matter to find out whether there was any material to record an order under Section 138 of the Code. Therefore, the finding of the Additional Sessions Judge appears not correct that the order of the Sub Divisional Magistrate was recorded without holding enquiry as required under Section 137 of the Code.

8. True it is as would appear from Section 137 of the Code, when there is a denial of the existence of any public right in respect to the water, river, channel, the Magistrate at first instance will have to be satisfied on enquiry regarding existence of such a right and thereupon be shall proceed under Section 138 of the Code to take evidence of the parties. Therefore, to my mind, the enquiry as contemplated under Sub-section (2) of Section 137 of the Code will not necessarily mean the examination of witnesses in detail. In the present case, I have already noticed that the Magistrate had got the matter enquired into by the Anchal Adhikari after spot verification etc. and thereafter, on being satisfied regarding existence of a public right, he proceeded to examine witnesses of the parties and thereafter, ultimately recorded the order lor removal.

9. Therefore, in my view, for the reasons, stated above, the impugned order of the learned Additional Sessions Judge cannot sustain and the same is hereby quashed.