Meredith, J.:— This is a reference under section 438 of the Criminal Procedure Code made by the learned Additional District Magistrate, Gaya, recommending that a Magistrate's order under section 133 of the Criminal Procedure Code should be set aside.
On the report of the Superintendent, Way and Works, East Indian Railway (a State Railway), a proceeding was started against the Manager and gumasta of the Tikari Raj for removal, of a bund said to be an encroachment on the Railway land near bridge no. 310 in village Karjara, mile 331/3. The case of the Railway Company was that a bund had been extended right up to the Railway embankment, thereby projecting into the Railway land for 100 feet, and the effect was to lead to an accumulation of water below the embankment and prevent it flowing away naturally through a Railway culvert lower down, and so to endanger the track. The Raj officials showed cause denying the existence, of any public right in the land in question. The learned Magistrate then correctly proceeded to hold the enquiry required under section 139A, Criminal Procedure Code, and he held that there was no reliable evidence in support of the denial of the existence of a public right in the land in question. Having arrived at this conclusion, he proceeded to hold the enquiry under section 137, Criminal Procedure Code, and held that there had been an encroachment on the public land, causing danger to the track. He accordingly made the order absolute against the Raj officials, the 2nd party, and directed the removal of the encroachment. For his finding that the land was public land, he relied upon the explanation to section 133, Criminal Procedure Code, which says:—
“(a) ‘public place’ includes also property belonging to the State, camping grounds and grounds left unoccupied for sanitary or recreative purposes.”
The learned District Magistrate considers that he was wrong in his interpretation of the explanation, and that despite this explanation-land cannot be held to be a public place even though it is the property of the State, unless it is also shown that the public have an unrestricted right to use it. In the case of railway land, at least that part of it which is not the actual track, there is no right of user on the part of the public.
In my opinion, the view of the learned District Magistrate is wrong. He relies upon a decision of Macpherson, J. in Rangi Sah v. B.N.W Railway Co.. That, however, was not a case of a State Railway, and, therefore, no question of the interpretation of the explanation arose. The learned Judge merely held, and he was obviously correct in doing so, that land of a private railway company is not necessarily used by me public, and a Magistrate acting under section 133 must come to a distinct finding that the land encroached upon is or may be lawfully used by the public. The wording of section 133 is:
“Whenever a District Magistrate, a Sub-divisional Magistrate or a Magistrate of the first class considers on receiving a police-report or other information and on taking such evidence (if any) as he thinks fit, that any unlawful obstruction or nuisance should be removed from any way, river or channel which is or may be lawfully used by the public, or from any public place, etc. etc.”
In my opinion, the expressions
“way……………………. which it or made he lawfully used by the public”
“from any public place”
are disjunctive, that is to say, the section will be applicable either in the case of land, which need not be State land, lawfully used by the public, or in the case of any public place whether the public has unrestricted right to use if or not. Were it not so, it is difficult to understand why the legislature used words distinguishing these places, and why it went on further to add an explanation to show that the expression “public place” includes property belonging to the State. Having regard to the frame and wording of the section, I am of opinion that it is applicable to all cases of unlawful obstruction or nuisance upon any State property, even though the public may not be entitled to use it. In the eve of the law, moreover, the State represents the people, and in this view also a State right is the same thing as a public right, though not necessarily the same thing as public user. I would, therefore, hold that the consideration put forward by the learned District Magistrate affords no ground for interference with the Magistrate's order.
Mr. B.C De, however, for the Raj, urges two other points. His first is that the Raj officials contended that the bund had been in existence for a very long time and was not upon the Railway land. The assertion that it was not upon the Railway land was quite obviously incorrect in view of the admission that the bund extended right up to the embankment itself. A mere glance at the Railway acquisition map is enough to show that. The Magistrate was certainly justified in regarding such assertion as not being reliable evidence, especially having regard to the fact that it was admitted that a grandi constructed periodically by the Raj a little further down within the same alignment was on Railway property. The boundary of the Railway land, as the map shows, is a perfectly straight line, and the two statements were, therefore, completely inconsistent. Mr. De, however, points out that the Magistrate did not reject the contention that the bund had been in existence for, a long time, and argues that the long existence of the bund should in itself be considered reliable evidence of a bona fide claim in denial of the public right and so sufficient to oust the jurisdiction of the Magistrate. He relies upon several decisions of this Court. First, a Division Bench case—Thakur Sao v. Abdul Aziz wherein it was pointed out that section 139A requires only evidence and not proof. The Magistrate has no jurisdiction to weigh the evidence and decide on which side the balance leans. Secondly, he relies upon Janki Ram v. Saukhi Panjara, a decision of Jwala Prasad, J., and Bhajoo Gope v. Haji S. Gholam Haider, a, decision of Dhavle, J., in both of which it was held that long user by a person of what is claimed to be a part of a public way may be taken as a bona fide assertion of claim ousting the jurisdiction of the criminal Court to pass a summary order under section 133. In other words, that evidence of long user by the private party may be taken as equivalent to reliable evidence of the non-existence of the public right.
In my opinion, in these decisions a correct proposition has been stated somewhat too broadly. The proposition may be correct in the absence of anything else, but a qualification is necessary. The evidence brought forward in denial of the public right must be taken as a whole; and if the statements of the witnesses on the point in themselves also contain a refutation of the claim made, then the suggested inference does not follow and the jurisdiction is not ousted. To revert to the case, relied upon by Mr. De, Thakur Sao v. Abdul Aziz the requisite condition specified is that upon the materials before him the Magistrate shall have no reason to think the evidence false. That is the key to the present case. The statements of the Raj witnesses themselves refuted the inference which might be drawn from the long user, since the admission with regard to the grandi necessarily indicated that the bund was upon the Railway land. It is necessary to notice further that the Magistrate did not find that the portion of the bund lying upon the Railway land had been long in existence. He came to no decision upon that point, in regard to which the parties were in conflict, and, in my opinion, it was not necessary for him to come to any decision. In my judgment, Mr. De's contention must be rejected.
Mr. De's other point is a technical one. He says that the second party upon appearance was not questioned by the Magistrate as to whether he denied the existence of any public right, as required by section 1394. The answer is that in this particular case it was unnecessary for the Magistrate to put any such question, because the second party directly upon appearance put in a statement denying the existence of any public right. To require the Magistrate to question a party as to whether he intended to do what he had already done without being asked, would be, in my judgment, to quote the words of Sir George Rankin in a well known case, “to pile technicality upon unreason”. Mr. De relies upon a decision of Wort, J. in Mahadeo Lal v. Hossaini Pandey, in which the learned Judge expressed doubt whether there can be a waiver of a mandatory provision, such as is contained in section 139A. If I may say so, the doubt expressed was quite applicable to the case before the learned Judge, because he found that there had in fact been no denial of the public right, and he thought had the question been put by the Magistrate there might have been such denial. It was alleged before him that there had been waiver of the right to deny, and he held that there had been no waiver, which was enough to dispose of the case before him. On the point whether if there had been waiver the question could have been dispensed with, it was not necessary for him to come to any definite decision, and he did not come to any definite decision; he merely expressed “the gravest doubt”. In my view, however, there is no question of waiver in the present case; we are concerned with the denial anticipating the question—an entirely different matter.
In my opinion, there is no substance in any of the contentions put forward and I would reject the reference.
Agarwala, J.:— I agree.
Reference rejected.
H.R.K