This revision challenges the order of first respondent passed in Na.Ka.A1.No.2387 of 2015 dated 17.08.2015 whereunder, first respondent required the Tahsildhar to remove the two gates which prevented access to Survey Nos.498/3 and 518/3 in Revenue Village Thoodhoormattam, Coonoor Taluk.
2. Petitioner has, in response to summons issued u/s.133 Cr.P.C, caused appearance and raised objections informing that the land, access to which was sought, belongs to petitioner/Company over a prolonged period and ingress and egress through the gates would cause problems to petitioner/Company, workers, employees and others as also schools and hospitals therein.
3.
Sections 137 and
138 of the Code of Criminal Procedure read thus:
137. Procedure where existence of public right is denied. - (1)Where an order is made under
section 133 for the purpose of preventing obstruction, nuisance or danger to the public in the use of any way, river, channel or place, the Magistrate shall, on the appearance before him 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, and if he does so, the Magistrate shall, before proceeding under
section 138, inquire into the matter.
(2) 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.(3) otiose
138. Procedure where he appears to show cause. - (1) If the person against whom an order under
section 133 is made appears and shows cause against the order, the Magistrate shall take evidence in the matter as in a summons-case.
(2) If the Magistrate is satisfied that the order, either as originally made or subject to such modification as he considers necessary, is reasonable and proper, the order shall be made absolute without modification or, as the case may be, with such modification.
(3) If the Magistrate is not so satisfied, no further proceedings shall be taken in the case.
4. The order of first respondent under challenge reflects the position that first respondent has not considered the objections raised on behalf of petitioner and proceeded to pass the order under challenge, going by the report of the Revenue Authorities. In the instant case, petitioner has denied the existence of a public right to pass through gates.
Section 137(1) Cr.P.C. requires a Magistrate to inquire into the matter.
Section 137(2) Cr.P.C., in effect informs that if the Magistrate is satisfied that the denial of public right is justified then he shall stay his proceedings until the question of existence of public right is decided by a competent Court. If he does not find merit in the denial of public right, he is required to proceed in keeping with
Section 138 Cr.P.C.
Section 138 Cr.P.C would require the Magistrate to take evidence in the matter as in a summons case and he shall then proceed in keeping with sub-sections 2 and 3 of
Section 138 Cr.P.C. In passing the order under challenge, first respondent has failed to follow the prescribed procedure.
The Criminal Revision shall stand allowed. The order of first respondent passed in Na.Ka.A1.No.2387 of 2015 dated 17.08.2015 shall stand set aside. The matter shall now stand remitted back to first respondent for further proceedings and in keeping with the manner indicated herein above.