JUDGMENT
1. This petition is directed against the judgment and order dated 12.3.97 passed by the learned Sessions Judge, Kamrup in Criminal Revision No. 68/95 setting aside the order dated 8.6,95 passed by the Executive Magistrate, Rangia dismissing the Case No. 256m/ 87 u/s 133 CrPC. The learned Sessions Judge remanded the case to the learned Magistrate for disposal in accordance with law.
2. I have heard Mr.-RP Sarma, learned counsel for the petitioner second party as well as Mr. RC Saikia learned counsel for The respondent first party assisted by respondent first party No. 1 Mr. Sarifuddin Ahmed appearing in person.
3. Though Section 133 CrPC is intended to provide a speedy and summary remedy, the instant case has a very long and chequered history. More than 13 years ago, on 13.7.87 the first party filed a petition u/s 133 CrPC before the Additional District Magistrate, Kamrup alleging inter alia, that since 1965 first party had been using the public path leading from PWD N.T. Road of Ward No. 4 of Rangia Town to their residence having no alternative path, and that the second party had narrowed down the path by constructing a pucca wall overnight on the plea of obtaining permission for such construction from Rangia Municipal Board. After receiving the aforesaid petition from the Additional District Magistrate, Kamrup, the learned Sub Division Judicial Magistrate, Rangia dismissed the same by his order dated 13.10.87 which reads, inter alia.
“I have personally visited the spot and in my opinion there is no public nuisance involved in this regard. The first party cannot have a right of path on second party’s land.”
4. On revision learned Additional Sessions Judge, Kamrup set aside the above order dated 13.10.87 and remanded the case by judgment and order dated 23.10.90 passed in Criminal Motion No. 17 (K-4) 87. After remand the following conditional order u/s 133 CrPC was passed :-
“… the court had inspected the record and found that though the case proceeding runs as under provisions of Section 133 CrPC, the actual fact the proceedings was not yet drawn up u/s 133 CrPC. So I am satisfied to draw up the proceeding u/s 133 CrPC and order 2nd party to show cause why the said nuisance should not be removed u/s 133 CrPC. Meanwhile the 2nd party members filed show cause on 26.2.91 in anticipation that the proceeding had already been drawn up. And after hearing the party today the show cause dated 26.2.91 is regularised.”
5. In view of “regularisation” of the earlier written statement as aforesaid, after the above conditional order was passed, the second party appeared in the court but did not file any further written statement showing cause as to why such conditional order should not be made absolute as contemplated in Section 133(1) CrPC. Nor on such appearance the learned Magistrate questioned the second party as to whether they denied the existence of any public right in respect of the path in question as required u/s 133(1) CrPC. However, when the second party filed written statement denying the existence of any public road it is unnecessary to put him such a question. In the instant case, in the written statement dated 26.2.91 referred to in the above conditional order the second party neither denied nor admitted the existence of any public right. But in an earlier written statement dated 3.9.87 the second party denied the existence of any public right in respect of the path in question. In a case where had the question been put, the answer must necessarily have been denial of public right as in the instant case, omission to put such a question is a mere irregularity. In fact, in the instant case the learned Magistrate proceeded with the case holding that the second party already denied the existence of any public right as is evident from his order dated 2.11.91, the relevant portion whereof is extracted below,
“2.11.91… The party who denied the public right will have to be called upon to produce evidence in support of the denial… So from the observance it is clear that the denying party (here the 2nd party) should give evidence first…”
6. Accordingly learned Magistrate examined two witnesses produced by the second party on 8.1.92 and 29.2.92. Thereafter the second parly adduced no further evidence. On closure of the second party’s evidence, it was incumbent on the learned Magistrate u/s 137(2) CrPC to arrive at a finding as to whether or not there was reliable evidence in support of denial of the existence of any public right. The learned Magistrate did not arrive at such finding either way. Instead, he proceeded to take evidence of the first party and on consideration of the evidence adduced by the parties came to conclusion that “there is no such obstruction causing public nuisance which ought to be removed.”, and dismissed the case by the order dated 8.6.95. This order is liable to be set aside for the simple reason that the learned Magistrate did not comply with the requirements u/s 137(1) CrPC as aforesaid. The learned Session Judge was therefore perfectly justified in setting aside the said order and remanding the case back to the Magistrate for disposal in accordance with law.
7. When a proceeding is drawn up u/s 133(1) CrPC for alleged obstruction of a public right, the Magistrate is to make two enquiries -firstly to determine whether or not there exists any public right in respect of the way etc., and secondly whether or not there has been obstruction caused on the said way etc. regarding the use of it by the public. These two enquiries cannot be made simultaneously without complying with the requirements of Sections 137 and 138 CrPC. If the party against whom the conditional order has been made denies the existence of the alleged public right, the Magistrate shall enquire that question by taking evidence of such objector. If on such enquiry the Magistrate finds that the evidence in support of the denial of the alleged right is “reliable” the Magistrate shall stay the proceedings before him until the question of existence of such right is decided by a competent court. If, however, the Magistrate finds that such evidence is not reliable, he shall then proceed u/s 138 CrPC to determine the other question, viz., whether there has been any obstruction etc. caused by the objector, by taking the evidence of both the parties. If on taking such evidence the Magistrate finds that the conditional order is reasonable and proper, he shall make it absolute, with or without modification as may be necessary ; or, if not so satisfied he shall close the proceeding u/s 133 CrPC.
8. In the result, this revision is dismissed subject to the above observations.
9. The parties are hereby directed to appear before the learned
Magistrate on 12.4.2001 for the purpose of receiving instruction of that court as to further proceedings of the case. Since it is an old pending case the learned Magistrate shall dispose of the case expeditiously preferably within six weeks from the date of receipt of this order and the records.
10. Send down immediately the lower court records alongwith a copy of the judgment and order of this court so as to reach that court before 12.4.2001.