Section 137 CrPC: Procedural Safeguards in Public Nuisance Cases Involving Denial of Public Rights

An Analysis of Section 137 of the Code of Criminal Procedure, 1973: Procedure upon Denial of Public Right in Nuisance Proceedings

Introduction

The Code of Criminal Procedure, 1973 (CrPC) provides a mechanism for the summary removal of public nuisances, primarily under Section 133. This provision empowers specified Magistrates to issue conditional orders for the removal of such nuisances. However, a critical procedural safeguard is embedded in Section 137 CrPC, which comes into play when the person against whom such an order is made appears and denies the existence of the public right in question. This article undertakes a comprehensive analysis of Section 137 CrPC, examining its legislative intent, procedural mandates, judicial interpretations, and its interplay with other provisions of the Code, drawing upon relevant case law.

The Legislative Scheme: Section 133 and the Invocation of Section 137 CrPC

Chapter X of the CrPC, titled "Maintenance of Public Order and Tranquillity," contains provisions for urgent cases of nuisance or apprehended danger. Section 133 CrPC empowers a District Magistrate, a Sub-Divisional Magistrate, or any other Executive Magistrate specially empowered by the State Government, to make a conditional order for the removal of any unlawful obstruction or nuisance from any public place or from any way, river, or channel which is or may be lawfully used by the public. Such orders can also pertain to the conduct of any trade or occupation, or the keeping of any goods or merchandise, injurious to the health or physical comfort of the community.[1] The person against whom such an order is made is required to either comply with the order within the time fixed or to appear and show cause against it.

It is at this juncture, when the person appears to show cause and specifically denies the existence of a public right in respect of the way, river, channel, or place, that Section 137 CrPC is triggered. This section lays down a special procedure to be followed before the Magistrate can proceed further under Section 138 CrPC (which deals with the procedure where the person appears to show cause generally).

Core Mandate of Section 137 CrPC: Procedure upon Denial of Public Right

Section 137 CrPC is meticulously structured to address situations where a claim of public right, foundational to the Section 133 order, is contested. Its provisions are crucial for ensuring that private rights are not unduly infringed upon under the guise of removing public nuisances without a proper inquiry into the nature of the right itself.

1. Questioning by the Magistrate

Section 137(1) mandates that when an order is made under Section 133 for preventing obstruction, nuisance, or danger to the public in the use of any way, river, channel, or place, the Magistrate shall, on the appearance 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. This initial questioning is a mandatory prerequisite. The Rajasthan High Court in G.B Jain & Sons v. State Of Rajasthan & Anr. emphasized this, noting that "Sub-section (1) of Section 137 requires that if the person against whom an order was made under Section 133 Cr.P.C. denies the existence of any public right in respect of the way or place, the Magistrate shall before proceeding under Section 138 inquire into the matter."[2] The failure of the Magistrate to question the person as to the denial of a public right has been held to vitiate the proceedings.[2] This was reiterated by the Allahabad High Court in Arun Kumar And Another Petitioners v. State Of U.P And Others S[3] and Sita Ram Mishra v. State Of U.P & Ors.[4]

2. Inquiry into the Denial

If the person denies the existence of the public right, Section 137(1) further directs that "the Magistrate shall, before proceeding under Section 138, inquire into the matter." This inquiry is distinct from the general inquiry under Section 138. Its specific purpose is to ascertain if there is any substance to the denial of the public right. As observed in Sanjay Jha v. State Of Bihar, "if he does so (denies the public right), the Magistrate shall, before proceeding under Section 138, inquire into the matter."[5]

3. Evidentiary Standard for Staying Proceedings

Section 137(2) provides the framework for the outcome of this preliminary inquiry. It states: "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 Court; and, if he finds that there is no such evidence, he shall proceed as laid down in Section 138." The term "reliable evidence" is key. The Magistrate is not to conduct a full-fledged trial on the title or right but to ascertain if the denial is bona fide and supported by some credible evidence. The Allahabad High Court in Ravi Shanker v. Siyaram noted that even if a plea asserting private land "may have substance or may be totally frivolous and without substance," once such a plea is raised (denying public right), Section 137 CrPC is attracted.[6] It further clarified, "It is, of course, open to the Magistrate not to stay the proceedings holding that there is no reliable evidence in support of such denial. But that is a matter which concerns the Magistrate."[6]

4. Consequences of the Inquiry

The inquiry under Section 137(2) leads to one of two outcomes:

  • Stay of Proceedings: If the Magistrate finds "reliable evidence" supporting the denial of the public right, the criminal proceedings under Chapter X must be stayed. The matter concerning the existence of the right is then left to be adjudicated by a competent civil court. This provision prevents the criminal court from summarily deciding complex questions of title or rights over property.
  • Continuation of Proceedings under Section 138: If the Magistrate finds "no such reliable evidence" in support of the denial, the bar to proceeding under Section 138 is lifted, and the Magistrate shall proceed as laid down in Section 138.[2][5]

5. Bar on Subsequent Denial (Section 137(3))

Section 137(3) introduces an element of estoppel. It stipulates: "A person who has, on being questioned by the Magistrate under sub-section (1), failed to deny the existence of a public right of the nature therein referred to, or who, having made such denial, has failed to adduce reliable evidence in support thereof, shall not in the subsequent proceedings be permitted to make any such denial." This ensures that the issue of public right is addressed at the outset and prevents dilatory tactics. Both Arun Kumar[3] and Sita Ram Mishra[4] quote this subsection, highlighting its significance.

Judicial Interpretation and Application of Section 137 CrPC

1. Mandatory Nature of the Procedure

The judiciary has consistently held that the procedure outlined in Section 137 CrPC is mandatory, not merely directory, when a public right is denied. In G.B Jain & Sons, the Rajasthan High Court quashed proceedings where the Magistrate, after the petitioners filed a reply (presumably denying public right), "straightway posted for evidence of the prosecution and neither the petitioners were questioned nor any inquiry as to the denial of existence of public right was held."[2] Similarly, in Ravi Shanker v. Siyaram, the Allahabad High Court rejected the argument that bypassing Section 137 was a mere technicality, stating, "if that view is adopted, it would nullify the provision of section 137, CrPC. The court cannot question the wisdom of legislature, when any provision has expressly been laid down also providing for stay of proceedings and inviting decisions by civil court in certain situation, such procedure has got to be followed."[6] This view was also taken in earlier cases concerning the analogous provision (Section 139-A) of the old CrPC, 1898.[6]

2. What Constitutes "Denial of Public Right"

A clear assertion of private ownership or a private right over the land, way, or place in question typically constitutes a denial of public right. In Ravi Shanker v. Siyaram, the applicant's written statement claiming that the disputed land "ceased to be the property of Gaon Sabha... and it is the personal property of the present applicant" was held to "clearly amounts to an assertion that the land is not a public land and that it is the land of the applicant," thereby attracting Section 137 CrPC.[6]

3. "Reliable Evidence" - A Magisterial Assessment

The determination of whether "reliable evidence" exists in support of the denial is a matter for the Magistrate's judicial satisfaction. This does not mean conclusive proof, but rather evidence that, on its face, lends credence to the denial, making it a triable issue for a civil court. The Magistrate must apply their mind to the evidence adduced.

4. Distinction from Old Code (Section 139-A CrPC, 1898)

The current Section 137 CrPC, 1973, is largely analogous to Section 139-A of the Code of Criminal Procedure, 1898. The Rajasthan High Court in G.B Jain & Sons noted that Section 137 CrPC, 1973 "is more or less identical to Section 139-A of the Old Code of Criminal Procedure, 1898."[2] Therefore, jurisprudence developed under the old Section 139-A often remains relevant for interpreting the current Section 137. It is important to distinguish the current S.137 from S.137 of the old Code, which dealt with the procedure after a party appeared to show cause, somewhat akin to the current S.138. For instance, the Delhi High Court in Balwant Singh Petitioner v. Mandir Lakshmi Narain, discussing the old S.137, stated it "enjoins upon the Magistrate upon cause being shown against the conditional order to take evidence in the matter as in a summons case."[7] This evidence-taking process is now primarily under S.138, after the S.137 (new code) inquiry, if applicable, concludes without a stay.

Relationship with Section 138 CrPC

Section 138 CrPC outlines the procedure to be followed where the person against whom a conditional order under Section 133 is made appears and shows cause against the order. The Magistrate is required to take evidence in the matter as in a summons case.[7] Section 137 CrPC acts as a filter before the full-fledged inquiry under Section 138 can commence, specifically in cases involving a denial of public right. If:

  • No denial of public right is made when questioned under Section 137(1); or
  • A denial is made, but the Magistrate, after inquiry under Section 137(2), finds no reliable evidence in its support;
then, the Magistrate proceeds under Section 138. If the Magistrate is satisfied under Section 138 that the conditional order is reasonable and proper, it shall be made absolute, with or without modification.[8] If not so satisfied, no further proceedings are taken.[7]

The case of Otmal v. Jhunjha Ram And Ors., while dealing with the old CrPC (S.137 of 1898 code), highlighted that under the old code, no modification in the conditional order was permissible when making it absolute under that section.[8] However, the judgment noted that "in the provisions under Section 138 of the Code of Criminal Procedure, 1973 it has now been specifically provided in Sub-clause (2) of that section that the Magistrate may pass absolute order subject to such modifications as he considers necessary."[8] This clarifies the power of modification available under the current S.138.

Scope of Orders and Nuisance Adjudication

The proceedings under Sections 133 to 143 CrPC are aimed at providing a speedy remedy for public nuisances. The Supreme Court in C.A Avarachan v. C.V Sreenivasan And Another emphasized the need for substantial evidence to establish nuisance under Section 133.[9] The powers of the Magistrate under Section 133 are significant, as seen in Nagarjuna Paper Mills Ltd. v. Sub-Divisional Magistrate And Revenue Divisional Officer, where the High Court upheld the SDM's authority under Section 133 even in matters potentially overlapping with Pollution Control Board jurisdiction.[10] In Gobind Singh v. Shanti Sarup, the Supreme Court upheld a Magistrate's order under Section 133 concerning a bakery causing nuisance and even modified it to include demolition.[11] Section 137 CrPC ensures that these wide powers are exercised with caution when fundamental questions about the public nature of the right allegedly infringed are raised.

Challenges and Considerations

The primary challenge in applying Section 137 CrPC lies in the Magistrate's assessment of "reliable evidence." An overly summary dismissal of a denial could lead to injustice, while an overly lenient approach might stymie legitimate public nuisance actions. The Magistrate must strike a balance, ensuring that the inquiry is meaningful but does not transform into a full trial of title, which is the domain of civil courts. The provision serves to protect individuals from arbitrary action based on contested claims of public right, reinforcing the principle of due process.

The procedural integrity mandated by Section 137 CrPC is paramount. As seen in multiple High Court judgments, failure to adhere to the questioning and inquiry process when a public right is denied can lead to the quashing of the proceedings. This underscores the judiciary's commitment to upholding these safeguards.

Conclusion

Section 137 of the Code of Criminal Procedure, 1973, stands as a vital procedural safeguard within the scheme for summary abatement of public nuisances. It ensures that when a person against whom a conditional order under Section 133 CrPC is made genuinely contests the public nature of the right involved, the Magistrate must first conduct a preliminary inquiry into this denial. If reliable evidence supports the denial, the matter is rightly deferred to a competent civil court, preventing summary adjudication of complex civil rights in a criminal forum. The consistent interpretation by High Courts affirming the mandatory nature of this procedure highlights its importance in balancing the community's interest in a nuisance-free environment with the individual's right to due process and protection of property. Adherence to the letter and spirit of Section 137 CrPC is thus essential for the just and fair administration of these provisions.

References

  1. Section 133, Code of Criminal Procedure, 1973.
  2. G.B Jain & Sons v. State Of Rajasthan & Anr. (1999 SCC OnLine Raj 130 / RLW 1999 (3) Raj 1581), Rajasthan High Court.
  3. Arun Kumar And Another Petitioners v. State Of U.P And Others S (2012 SCC OnLine All 3462), Allahabad High Court.
  4. Sita Ram Mishra v. State Of U.P & Ors. (2010 SCC OnLine All 2763), Allahabad High Court.
  5. Sanjay Jha v. State Of Bihar (2015 SCC OnLine Pat 695 / (2015) 3 PLJR 499), Patna High Court.
  6. Ravi Shanker v. Siyaram (1982 SCC OnLine All 970 / 1983 All LJ 56), Allahabad High Court. (Also referred to as Ravi Shanker…(Applicant); v. Siyaram And Others…(Opposite Parties). (1982))
  7. Balwant Singh Petitioner v. Mandir Lakshmi Narain (AIR 1970 Delhi 255 / ILR (1970) 2 Delhi 517), Delhi High Court (referring to Section 137 of the Code of Criminal Procedure, 1898).
  8. Otmal v. Jhunjha Ram And Ors. (1978 WLN UC 131), Rajasthan High Court.
  9. C.A Avarachan v. C.V Sreenivasan And Another ((1996) 7 SCC 71), Supreme Court Of India.
  10. Nagarjuna Paper Mills Ltd. v. Sub-Divisional Magistrate And Revenue Divisional Officer (1987 SCC OnLine AP 259 / 1987 (2) ALT 921), Andhra Pradesh High Court.
  11. Gobind Singh v. Shanti Sarup ((1979) 2 SCC 267), Supreme Court Of India.