P L D 1956 Lahore 171 (PLP)

AKHLAQUE HUSSAIN, J.‑This is an application for revision of the order of the Sub‑Divisional Magistrate, Pindigheb, District Attock, dated the 30th of November 1954 passed on an application presented by the respondent under section 133 of the Code of Criminal Procedure. The respondent's appeal to the learned District Magistrate, Attock at Campbellpur, was rejected on the 30th of April 1955. In his application to the learned Magistrate the respondent alleged that there is a lane to the south of his residential house which has been a public way since a long time and that it had always been continuously used as such. He further alleged that the petitioners had obstructed the public way by cons tructing a wall. After recording the statements of two witnesses, the learned Magistrate made a conditional order under section 133, Criminal P. C. requiring the petitioners to remove the obstruction. The petitioners appeared and filed their written statement denying the existence of the public way and alleging ownership of the land in themselves. After recording the evidence of the respondent and then of the petitioners, the learned Magistrate passed the order in question which, although it does not say so, is really an order under section 137 (3) of the Code of Criminal Procedure and bas the effect of making his original order under section 133 Din absolute. Mr. Zahoor Ahmad for the petitioners has raised an objec tion which was not taken in either of the two lower Courts or in his revision petition to this Court. He contends that the learned Magistrate did not comply with the provisions of section 139‑A of the Code of Criminal Procedure inasmuch as he recorded the evidence of both the parties and thus there was no inquiry as contemplated by that section in which the evidence of the accused alone could be recorded. I am unable to accept this contention. There is nothing in the Code to show that it is not open to the Magistrate in an inquiry under subsection (I) of section 139‑A to take the evidence of both the parties. It would obviously be unjust to the complainant A to deny him an opportunity to show that the evidence produced by the accused in support of his denial of the existence of the public right is not reliable as required by subsection (2) of that section. I am, however, of the opinion that the order of the learned Magistrate must be set aside. Subsections (1) and (2) of section 139‑A are as follows:‑ (1) "Where an order is made under section 133 for the purpose of preventing obstruction, nuisance or danger to the public in the use of any way, river, channel or place, the Magistrate shall, on the appearance before him of the person against whom the order was made, question him as to whether he denies the existence of any public right in respect of the way, river, channel or place, and, if he does so, the Magistrate shall, before proceeding under section 137 or section 138, inquire into the matter. (2) If in such inquiry the Magistrate finds that there is any reliable evidence in support of such denial, he shall stay the proceedings until the matter of the existence of such right has been decided by a competent Civil Court; and, if he finds that there is no such evidence, he shall proceed as laid down in section 137 or section 138, as the case may require". A perusal of these provisions, along with those of section 133, makes it abundantly clear that the intention of the legislature, as expressed in these provisions, was that a Magistrate should not upon an application under section 133 usurp or oust the jurisdiction of the Civil Court by adjudicating upon a civil right either of individuals or of the public. This is evident, inter alia, from the fact that the special provisions of section 139‑A have been applied only to the complaints mentioned in the second paragraph of subsection (1) of section 133 which relate to unlawful obstruction to, or nuisance in, "a way, river or channel, which is or may be lawfully used by the public, or . . . any public place." The remaining paragraphs of that subsection relate only to acts or things which are either injurious, or cause annoyance or obstruction, to the public and no civil right is involved therein. In cases relating to the matters mentioned in various paragraphs of subsection (1) of section 133, other than the second, the Magistrate is to record evidence under section 137 (1) and pass final orders under subsection (3). In cases coming under the second para graph, he is required "before proceeding under section 137" to enquire into the denial by the accused of "the existence of any public right in respect of the way, river, channel, or place; " and the only power conferred upon him during this inquiry is, according to subsection (2), to find whether "there is any reliable evidence in support of such denial". "If he finds that there is no such evidence, he shall proceed as laid down in section 1,W"; but if he finds that there is such evidence "he shall stay the proceedings until the matter of the existence of such right has been decided by a competent Civil Court". From the analysis of the two relevant sections that I have given in the preceding paragraph, it is clear that a Magistrate, in cases covered by the second paragraph of section 133, possesses no jurisdiction to adjudicate upon the existence or otherwise of any public right in respect of way, river, channel or place. All that he can do is to see whether there is any reliable evidence in support of such denial; in other words, whether a prima facie case has been made out by the accused. I have very carefully scrutinised the entire record to find out whether the learned Magistrate in this case was aware of the provisions of section 139‑A and of the limited nature of the jurisdiction conferred upon him by the legisla ture. I regret to say that I have failed to find the slightest indication to this effect. The following sentence in which the learned Magistrate has recorded his finding shows beyond a shadow of doubt that the learned Magistrate was not, while deciding this case, conscious of the nature and extent of his jurisdiction. He says :‑, "In my opinion, therefore, the place appears to be a public thoroughfare and the respondent has not been able to estab lish by reliable evidence and (that?) it is their private property." It was not for the learned Magistrate to decide whether the accused had been able to "establish . . . their private" right by reliable evidence. He had only to see whether there was reliable evidence in support of the accused's assertion and if so stay the proceedings before him till the matter had been decided by a Civil Court. For these reasons I am constrained to hold that the learned Magistrate had no jurisdiction to act as he did. Learned counsel for the respondent urged before me that the irregu larity, if any, is curable under the provisions of section 537 of the Code of Criminal Procedure. Those provisions are obviously in applicable because by exercising a jurisdiction which was not at all vested in him, the learned Magistrate has deprived the petitioners of their right to have their claim adjudicated upon by a Civil Court. Learned counsel also relied on the rulings reported in Ram Dayal v. dagdamba Debi (A I R 1942 All. 443) Ram Narain v. Emperor (A I R 1946 Oudh 108), Muzaffar Ahmad v. Khitindra Bhusan. (A I R 1946 Cal. 302) and Bansidhar Marwari v. P. Lh. D. Bihar (A I R 1943 Pat. 3) to support the order of the learned Magistrate. It is not necessary for me to discuss these rulings as none of them has any bearing upon the facts of the case before me. I, therefore, set aside the order of the learned Magistrate and as, after careful consideration, I am satisfied that there was reliable evidence in support of the petitioners' denial of the public right claimed by the respondent, I direct the learned Magistrate to stay the proceedings before him until the matter of the existence of the right claimed by the respondent has been decided by a competent Civil Court. After the decision of the Civil Court, he shall proceed in accordance with the provisions of section 137 of the Code of Criminal Procedure. A. H. Petition accepted.