Darwara Singh v. The State Of Rajasthan And Ors.

1. This miscellaneous petition is directed against the order dated April 12, 1989, passed by the District and Sessions Judge, Sri Ganganagar, by which the learned Sessions Judge dismissed the revision petition filed by the petitioner.

2. Pyara Singh and Darwara Singh sons of Shri Thakur Singh filed an application under Section 133 of the Code of Criminal Procedure in the Court of the Sub-Divisional Magistrate, Sri Ganganagar, against Dhara Singh, Dalbeer Singh, Kulwant Singh, Gurmit Singh and Manjit Singh mentioning there in that there is a public way of about 40' wide situated between Aahata Nos. 15 and 38 in village 1-H Chhoti, tehsil Sri Ganganagar. This is a sanctioned way and is situated between the two plots of the applicants. The non-applicants, on December 15, 1985, made obstructions in this public way and constructed a wall, measuring 100' x 25'. It was further mentioned that the applicants are living in plot No. 30 and the non- applicants are not allowing them or their cattle to pass through that way as they have obstructed the public way. It was, therefore, prayed that the proceedings under Section 133 Cr. PC may be initiated against the non- applicants and they may be directed to remove this obstruction, which has been made by them on a public way and has caused a nuisance to the public at large. The learned Magistrate, treating the case of the applicants under Section 133, Cr. PC, passed a conditional order and issued notices to the non-applicants requiring them to remove the obstruction created by them and to open the way for public use and if they have any objection then they may appear before the Court on January 1, 1986 and may file objections, if any. The non-applicants appeared before the learned Sub-Divisional Magistrate and filed their objections on January 8, 1986, mentioning there in that they have purchased the land, situated in between plots No. 13 and 32 on January 12, 1969, measuring 200' x 40' in the auction proceedings, from the Gram Panchayat itself and in these auction proceedings, the applicants were also, present. The non- applicants are the owners of plots No. 31 and 32 which are adjacent to the plot in question and they have already constructed a Pacca Kotha over this land. This land was never used as a public way but actually this land was being used by the non-applicants for their personal use and they have purchased this land from the Gram Panchayat in an open auction in the year 1969 and the construction over this plot of land has been made by the non-applicants on their own land which they purchased from the Gram Panchayat. The non-applicants placed on record the copy of the 'PATTA' dated May 25, 1969, issused by the Gram Panchayat. It was, also, mentioned in the reply that the applicants, aggrieved of the auction of the land in favour of the non-applicants, aggrieved of the auction of the land in favour of the non- applicants, preferred a revision petition before the District Collector, Sri Ganganagar, which was decided by the learned Collector on merits and by his order dated July 28, 1987, he dismissed the revision petition filed by the applicants. The non-applicants, also, placed on record certified copy of this order. The learned Magistrate, thereafter, heard the counsel for the parties and came to the conclusion that the non-applicants have produced some reliable evidence in support of their denial and it is not a case of a public way and is not, covered by Section 133 Cr. PC. The learned Magistrate, also, came to the conclusion that the applicants have not come before the Court with clean hands. The map, produced by the applicants alongwith the application, is, also, not correct. He therefore, was of the opinion that the case is not covered by Section 133 Cr. PC and as such, cancelled the order and consigned the proceeding to the record. Dissatisfied with the order dated July 7, 1988, passed by the learned Sub-Divisional Magistrate, Sri Ganganagar, the applicants preferred a revision petition before the learned Sessions Judge, Sri Ganganagar, who by his order dated April 12, 1989, dismissed the revision petition filed by the applicants. It is against this order that the present miscellaneous petition has been filed.

Heard learned Counsel for the petitioner and the learned Counsel for the non-petitioners as well as the learned Public Prosecutor.

3. It is contended on behalf of the applicant-petitioner that the learned lower Court committed an error in cancelling the conditional order passed by the Sub-Divisional Magistrate as there was sufficient evidence on record, from which it would appear that there was public way and the non-applicants have obstructed that way and, therefore, the learned lower Court should have ordered for the opening of the public way instead of dismissing the revision petition filed by the petitioner. It was, further, argued that the learned Magistrate has dropped the proceedings, which he could not have done and as per the law, he should have stayed the proceedings. In support of this contention, he has placed reliance over : Thakur Kaliyan Singh v. The Slate of Rajasthan 1954 RLW 704, Shaman Kumar v. Puri 1961 RLW 631 and Ganga Ram v. The State of Rajasthan (1969 RLW 334). The learned Counsel for the non- applicants, as well as the learned Public Prosecutor, have supported the order passed by the learned lower Court.

4. I have considered the rival submissions made by the learned Counsel for the parties.

5. Chapter X of the Code of Criminal Procedure deals with the 'Maintenance of Public Order and Tranquillity'. Part-B of this Chapter, containing Sections 133 to 143, relates to the public nuisance. The proceedings under Part B of Chapter X are of a summary nature and intended to enable the Magistrate to deal with the cases of emergency and are not intended to settle private disputes between the different members of the public. They are not supposed to be used as a substitute for litigations in a civil court in order to settle a private dispute and if a person has any private right, which he wishes to be enforced, he should take recourse to the civil Courts. In order that an action may be taken under this Section for removal of unlawful action, the way where the obstruction has been made should have been of public use. The obstruction, which is not caused to the public in general but to some individual of a particular villages, does not fall under Section 133 Cr. PC. The dispute in the present case, to me, appears to be a personal dispute between the applicant and the non-applicants. The plot of land was purchased by the non- applicants in a public auction from the Gram Panchayat and in that auction proceedings, even the applicants were present. The applicants preferred a revision petition before the Collector, which was dismissed. Under Section 133 Cr. PC, the Court is supposed to act purely in the interest of public at large and not to settle and decide private rights of the parties. That is a matter to be decided by the civil Court, as is clear from the provisions of Section 137(2) of the Code of Criminal Procedure, which provides that if in such enquiry, as evisaged by Part-B of Chapter X, the Magistrate finds that there is no reliable evidence in support of such case, he shall stay the proceeding until the matter of existence of such right has been decided by the Court and if he finds that there is no such evidence then he shall proceed as Laid down under Section 168 Cr. PC. The learned Magistrate, in the present case, after carefully going through the evidence produced before him, found that there is a reliable evidence, produced by the non-applicants in support of their denial and as soon as the finding is arrived at by the learned Magistrate, his jurisdiction stands oust and the proceedings as per Section 137(2) Cr. PC are to be stayed by him and the matter has to be decided by the competent civil Court. It is not the jurisdiction of the Magistrate, after this finding is arrived-at, to proceed further in the matter and to decide the rights of the parties. That right is to be decided by the Civil Court. Now it is for the party interested who wants to assert such right, to go to the Civil Court and get his right established.

6. Now taking the second limb of the arguments advanced by the learned Counsel for the applicants, it was stated that when the Magistrate comes to the finding that there is reliable evidence in support of denial of the existence of the public right, then he should have statyed the proceedings, as required under Section 137(2) Cr. PC. There is no dispute so far as this legal aspect is concerned. The authorities cited by the learned Counsel for the applicants, as well as Section 137(2) Cr. PC are clear on this point. After this finding is arrived at the Magistrate has no discretion in the matter and there is an end of his jurisdiction. Now, if we see the order passed by the learned Magistrate in this light, then I find that the Magistrate has consigned the proceedings to the Record, which amounts to staying the proceedings, and the parties are now left open to get their rights determined by the competent Civil Court. The question: whether there is reliable evidence in support of the denial or not, is to be decided by the learned Magistrate after making an inquiry and if the Magistrate, after making an inquiry, comes to the conclusion that there is reliable evidence in support of the denial then the High Court is not expected to interfere in the proceedings under Section 482 Cr. PC, particularly when the revision petition, preferred against the order, has already been dismissed by the Collector and, also, in view of the specific statutory bar provided under Section 397(3) of the Code of Criminal Procedure for filing a second revision petition by the same person.

7. In this view of the matter, I do not find any force in this miscellaneous petition and the same is hereby dismissed.