Chapter X
Section 137 CrPC: Procedure where existence of public right is denied
New Law Update (2024)
Section 148 BNSS
TRIAL COURT
Magistrate (initial inquiry); Competent Civil Court (for right determination if denied)
Punishment
Procedural – Investigation / Inquiry
Cognizable?
Bailable?
Compoundable?
Bare Act Text
(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) A person who has, on being questioned by the Magistrate under Sub-Section (1), failed to deny the existence of a public right of the nature therein referred to, or who, having made such denial, has failed to adduce reliable evidence in support thereof, shall not in the subsequent proceedings be permitted to make any such denial.
Important Sub-Sections Explained
Section 137(1)
This sub-section mandates that when a person denies a public right in response to a public nuisance order, the Magistrate must conduct an initial inquiry into this denial before proceeding further. This ensures a preliminary check on the claim.
Section 137(2)
This critical sub-section outlines the Magistrate’s course of action based on the inquiry: if reliable evidence supports the denial of a public right, the proceedings are halted until a civil court resolves the dispute; otherwise, the Magistrate proceeds with the nuisance order.
Landmark Judgements
Gopal Singh v. State of Rajasthan (1966):
This ruling clarified that a Magistrate’s function under Section 137 CrPC is not to conclusively determine the existence of a public right, but merely to ascertain whether there is ‘reliable evidence’ supporting the denial of such a right. If such evidence is found, the proceedings must be stayed until a competent court decides the matter.
Surendra Kumar v. State of U.P. (1993):
The High Court reiterated that a Magistrate, when faced with a denial of public right under Section 137, cannot usurp the jurisdiction of a civil court to decide the right. The Magistrate’s inquiry is preliminary, and upon finding reliable evidence of denial, proceedings are to be stayed for adjudication by a civil court.
Ram Avtar v. State of U.P. (1987):
This judgment reinforced that the Magistrate’s jurisdiction to proceed under Section 138 CrPC is suspended if the person against whom an order under Section 133 is made produces reliable evidence denying the existence of a public right. In such circumstances, the Magistrate is obligated to stay the proceedings.