Ittyathi Vaidyan vs Antony

Joseph, J.—This is a reference by the District Magistrate of Kottayam u/s 438 of the Code of Criminal Procedure, recommending that the order passed by the First class Magistrate, Ponkunnam u/s 137 of the Code be quashed. The counter-petitioner before the First Class Magistrate denied the existence of the right in respect of a way claimed by the petitioner and after holding the preliminary enquiry u/s 139A the learned Magistrate held that there was no reliable evidence in support of the denial. Thereafter he proceeded to take evidence u/s 137. Both sides adduced evidence and after considering the same, he held that there was no justification for taking further proceedings in the case. The counter-petitioner preferred a revision before the District Magistrate who held that the two points arising for decision were :

(1) Whether the counter-petitioner, having failed to adduce reliable evidence in support of his denial of a public right in respect of the way at the inquiry u/s 139A could be allowed to re-agitate the same question at the later stages of the enquiry u/s 137, Criminal Procedure Code, and (2) Whether the order passed by the Magistrate to drop the proceedings is proper under the circumstances.

Answering both the points in the negative, he has made this reference for quashing the order. So far as the first point is concerned, the view taken by the learned District Magistrate, namely, that the question of the existence of the public right could not be enquired into u/s 137 is correct as it was held earlier that there was no reliable evidence in support of the denial of the same. However, it does not follow that the order of the First Class Magistrate requires interference. The learned Magistrate found that the counter-petitioner had not caused any obstruction by the construction of a kayyala. Except in the case of construction of a building or the disposal of any substance which is likely to occasion conflagration or explosion, action u/s 133 cannot be justified where the unlawful obstruction or nuisance is not actually in existence. The section does not apply to an anticipated but non-existent obstruction or nuisance. This is the view held in Shri Ram Vs. Emperor, and Kalyan Mul Mathur Vs. Emperor, , with which we respectfully concur. As pointed out by the First Class Magistrate, the petitioner had no case that an obstruction was actually made by the counter-petitioner and his complaint related only to a threatened obstruction. The Magistrate was therefore justified in dropping the proceedings and his order does not require interference. The reference cannot in the circumstances be accepted and we order accordingly.