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Sukh Ram v. Manohar Lal .

Punjab & Haryana High Court

Oct 8, 1959

Judgment

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Structured Summary of the Opinion (Dua, J.)

Factual and Procedural Background

Shri Manohar Lal filed an application under section 133 of the Code of Criminal Procedure against Sukh Ram Singh, the Sarpanch of village Gangaicha Ahir, alleging that Sukh Ram Singh had constructed a chabutra which unlawfully obstructed and narrowed a public thoroughfare. The Sub-Divisional Magistrate (Rewari) recorded preliminary evidence and issued a conditional order; the Sarpanch filed a written statement denying both the obstruction and the existence of a public right in respect of the thoroughfare and was invited to lead evidence under section 139A of the Code of Criminal Procedure.

The Sarpanch produced a Panchayat resolution sanctioning the chabutra and witnesses who supported his denial of obstruction; the complainant also led evidence. The Sub-Divisional Magistrate concluded that the chabutra had been constructed and caused public inconvenience, that the evidence for denial was insufficient, criticized the Sarpanch for abusing his position, and, by an unconditional order made absolute under section 137(3) of the Code of Criminal Procedure (18 August 1958), directed removal of the obstruction within fifteen days.

A revision was preferred to the Additional Sessions Judge, Rohtak, who recommended that the Magistrate's order be set aside because (i) the Magistrate had not complied with the procedural requirements of section 139A (specifically as to ascertaining the denial and whether reliable evidence supported it), (ii) the Magistrate had made remarks about the Gram Panchayat although it was not a party, and (iii) the Magistrate had not adjudicated whether proceedings under section 133 could be taken against the Panchayat. The record and the recommendation were forwarded to this Court.

Legal Issues Presented

Whether the Sub-Divisional Magistrate complied with the procedural requirements of section 139A of the Code of Criminal Procedure (i.e., ascertainment of denial and inquiry into whether there was reliable evidence in support of such denial) before proceeding under section 137.
Whether a Magistrate, after a denial under section 139A, may improperly adjudicate rights that belong to a civil forum (i.e., whether the Magistrate arrogated civil-court functions in light of the denial).
Whether acts done by the Sarpanch pursuant to resolutions of the Gram Panchayat attract protection under section 104 of the Gram Panchayat Act (i.e., immunity for acts done in good faith under the Act) and, if so, whether criminal proceedings can properly lie against the Sarpanch for such acts.
Whether proceedings under section 133 of the Code of Criminal Procedure can be taken against a Gram Panchayat which is not a party to the criminal proceedings, and the consequences for relief against an individual who acted on behalf of the Panchayat.
Whether the evidence led by the Sarpanch (denying obstruction and asserting Panchayat ownership) was reliable enough to prevent confirmation of the conditional order and to require dismissal of the application against him.

Arguments of the Parties

In Support of the Reference (Ch. Ram Sarup)

Argued that section 104 of the Gram Panchayat Act provides immunity from legal proceedings for acts done in good faith under that Act; hence, actions done by the Sarpanch on behalf of the Panchayat should attract protection and preclude criminal proceedings against him in respect of those acts.
Relied on Panchayat resolutions on the record said to sanction construction of the chabutra, indicating the work was carried out by the Sarpanch on behalf of the Panchayat.
Referred to an unreported decision (Sardara Singh v. Basta Singh) holding that a Magistrate cannot arrogate to himself the functions of a civil court, and that section 139A(2) places a bar on adjudicating civil rights in such proceedings.

Opposing the Reference (Mr. V.P. Prashar)

Contended that the Sub-Divisional Magistrate had complied with section 139A by giving the Sarpanch an opportunity to adduce evidence and by expressly finding that the evidence produced in denial was insufficient ("The evidence produced by the respondent in support of denying the existence of public right of passage is not sufficient...").
Submitted that a Panchayat resolution sanctioning the construction could not be a defense to liability if an obstruction was in fact created by the Sarpanch; official direction by the Panchayat would not automatically exculpate the Sarpanch in the criminal procedure under section 133.
Noted that the Sarpanch's written reply expressly denied both the obstruction and the existence of the thoroughfare, claiming Panchayat ownership of the site — which, the learned counsel submitted, amounted to a denial competent to be dealt with under the procedure.
Relied on authorities (Ramkripal Singh v. Superintendent, Way & Works and Rajuni Ranta Roy v. Ibrahim Sarkar) to support the proposition that omission to strictly follow certain procedural steps does not necessarily invalidate the proceedings and that section 537 CrPC may cure irregularities.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Sardara Singh etc. v. Basta Singh, Criminal Revision No. 1266 of 1953 (unreported; decided 28 Dec 1953)	That a Magistrate cannot arrogate to himself the functions of a civil court; relates to the bar in section 139A(2) against adjudicating civil rights in such summary proceedings.	Relied upon by counsel (supporting the reference) to argue that the Magistrate erred in adjudicating rights despite a denial. The Court records the authority but does not adopt a full ruling from it; rather it notes the relevance of the procedural bar in s139A(2).
Ramkripal Singh v. Superintendent, Way & Works, E.I.R. (citation as relied upon in the record)	Held that omission by the Magistrate to question the second party about the existence of any public right was immaterial when the party had put in a statement denying the existence of any public right.	Relied upon by Mr. Prashar to support the submission that the Magistrate's omission was not fatal; the Court considered this line of authority in assessing whether there was material non-compliance with s139A.
Rajuni Ranta Roy v. Ibrahim Sarkar	Addressed the applicability of section 537 of the Code of Criminal Procedure where a Magistrate had not complied with section 139A.	Relied upon by Mr. Prashar to contend that defects in strict compliance could be cured under section 537; the Court invoked section 537 in its analysis of curability of technical non-compliance.

Court's Reasoning and Analysis

The Court examined the record and the submissions and proceeded through the following analytical steps (stated as they appear in the opinion):

The Court first asked whether there was a material non-compliance with the procedural requirements of section 139A CrPC. It observed that a written statement had been filed by the Sarpanch and that an inquiry had been conducted by the Magistrate. On that basis the Court concluded that there was "no material non-compliance" with section 139A.
The Court held that any failure to "strictly and meticulously" comply with technicalities of section 139A would be curable by section 537 CrPC. It relied on the proposition (advanced by counsel and reflected in the record) that section 537 may save proceedings from being vitiated by procedural irregularity.
The Court noted the Sub-Divisional Magistrate had given an express finding that the evidence led by Sukh Ram Singh was not satisfactory — a factual conclusion relevant to confirmation of the conditional order — and that this weighed against invalidating the Magistrate's order for procedural defects alone.
However, the Court expressed concern that the Magistrate had treated the question of whether the construction was carried out under Panchayat authority in a "highly superficial and perfunctory manner." The Court stressed that if the Sarpanch acted solely in an official capacity on behalf of the Panchayat, the Magistrate must consider whether he (the Sarpanch) can properly be ordered to remove the obstruction, because an order can only be directed to the person who actually caused the obstruction.
The Court declined to decide the question itself, noting the point had not been fully argued before it, and left these specific factual and legal determinations to the Magistrate on remand after hearing the parties.
On the applicability of section 104 of the Gram Panchayat Act, the Court observed that protection under that section applies only to acts done in the discharge of duties imposed by the Act and in good faith; and that because the Gram Panchayat was not a party to the criminal proceedings, no order was in fact sought or passed against the Panchayat. The Court explained the practical consequences: if the Magistrate finds Sukh Ram Singh did not cause the obstruction, the application must be dismissed and the complainant remains free to pursue appropriate action against the Panchayat; conversely, if the Magistrate finds the Sarpanch personally responsible and the Panchayat could not lawfully order the obstruction, then the Magistrate may properly pass orders against the Sarpanch.
The Court emphasized that "reliable evidence" (for the purpose of section 139A) does not mean evidence sufficient to establish title to land — because if title were required the civil forum would be precluded and section 139A(2)'s purpose would be frustrated.
Finally, the Court observed that section 139A does not contemplate examination of the complainant solely for the purpose of rebutting evidence led by the opposite party under that section, although recording the complainant's evidence would not automatically render the proceedings illegal.

Holding and Implications

Core Ruling: The Court set aside the order of the learned Sub-Divisional Magistrate and remitted the matter to him for a fresh decision in accordance with law and in light of the observations made by this Court.

Consequences and practical implications (as stated in the opinion):

The Sub-Divisional Magistrate must re-examine whether there is reliable evidence in support of the Sarpanch's denial under section 139A; the Court expressed no concluded view on the sufficiency or reliability of that evidence and left that determination to the Magistrate after hearing parties.
The Magistrate must more thoroughly consider whether the Sarpanch acted in his individual capacity or on behalf of the Panchayat, because only the person causing an obstruction can properly be ordered to remove it. If the Magistrate finds the Sarpanch did not cause the obstruction personally, the application against him must be dismissed — leaving the complainant free to pursue remedies against the Panchayat if appropriate.
If the Magistrate finds the Sarpanch personally responsible and that the Panchayat could not lawfully order the construction that obstructs the thoroughfare, the Magistrate may pass necessary orders against the Sarpanch in accordance with law.
The Court noted that defects of strict procedural compliance with section 139A may be cured under section 537; it did not treat the Magistrate's procedural imperfections as necessarily fatal.
The Court did not lay down a novel legal principle or purport to decide the substantive dispute about title or the ultimate right to the land; rather it remitted the matter for fuller consideration by the Magistrate. Thus no new binding precedent was announced beyond the application of existing procedural principles reflected in the opinion.

Order set aside.

This summary is limited to and based exclusively upon the text of the provided opinion. No information beyond that opinion has been added or inferred.

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Dua, J.:— 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 the 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 denving the unlawful obstruction as well as the existence of any public 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 Sihai and R.W 2 Parbhati Lal supported the denial of obstruction to the thoroughfare. Manohar Lal also produced evidence in 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 obstructs 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 to the 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 unconditional order issued by the learned Sub-Divisional Magistrate on 18th of August, 1958, was made absolute under section 137(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 to record evidence under section 137 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 is 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 no reliable evidence in support of the denial of the public right; according to him proceedings under section 137 of the Code of Criminal Procedure could not be taken without giving a decision on the aforesaid two points. The learned Additional Sessions 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 criticised 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 139A of the Code of Criminal Procedure in as much 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 not 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 it had nothing to do with any thoroughfare. This plea has, implicit in it, the denial of the 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 dons 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 placed on the record of this case, which prove sanction for the construction of a chabutra alongside the 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, inspite 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 etc. v. Basta Singh . Cr. R. 1266 of 1953., Criminal Revision No. 1266 of 1953, decided on 28th of December, 1953). Mr. Prashar has, on the other hand relied on Ramkripal Singh v. Superintendent, Way & Works, E.I.R,2 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 Rajuni Ranta Roy v. Ibrahim Sarkar,3 in which section 537 of the Code of Criminal Procedure was held to apply where Magistrate had not complied with the provisions of section 139-A 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 section 139-A of the Code of Criminal Procedure. The written statement having been bled and an inquiry having actually been held by the Magistrate, the failure, if any, to strictly and meticulously comply with the technicalities of section 139-A 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 to the 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 decide this question after hearing the 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 his own conclusion.

8. With respect to the applicability of section 104 of the Gram Panchayat Act, it has to be borne in 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 imposed 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 139-A 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 to the conclusion that Sukh Ram Singh Sarpanch has not caused any obstruction within the purview of section 133 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 139-A (2) would become unnecessary and meaningless. I may also observe that the provisions of section 139-A of the Code of Criminal Procedure do not contemplate examination of evidence of the complainant for 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 reasons, I would set aside the older of the learned Sub Divisional Magistrate and send the case back to him for a fresh decision according to law.