B.R.James, J. - (1.)This Reference under Section 438, Cr. P. C. by the Sessions Judge of Oral illustrates the danger, of technical legalism perpetuating an injustice, in the instant case allowing a rank trespasser to make wrongful gain at the expense of the users of a State highway. Normally I would have disposed of it in a few lines, but since, despite the dictum of Bose, J. in State of U. P. v. Mohd. Nooh, AIR 1958 SC 86 that :
"Justice should be administered in our Courts in a common sense liberal way and should be broad-based on human values rather than on narrow and restricted considerations hedged round with hairsplitting technicalities,"
this Court is coming across an increasing number of References which rest on pure technicalities unrelated to the equities of the cases, I think it desirable to consider the present Reference in some detail so as to exlpain the principles which subordinate Courts should follow in dealing with cases under Ch. XXXII of the Code.
(2.)The facts as recited in the Sessions Judge's Order of Reference are these: The P.W.D. District Engineer made a report to the Magistrate that one Gulab Singh had made an encroachment to the extent of nine feet by nine feet on the Lucknow-Jhansi pucca road in the town of Orai by constructing a shop on it. The learned Magistrate made a conditional order under Clause (1), of Section 133 Cr. P. C. requiring Gulab Singh to remove the said encroachment within fifteen days or to show cause why the order should not be enforced. On the date fixed for hearing Gulab Singh moved an application in which he neither admitted nor denied that his shop stood on the highway; he only prayed for a local inspection. The learned Magistrate recorded the statements of the local Lekhpal and the P.W.D. Overseer. The former filed a map and stated that the shop stood on land forming part of the highway. The Overseer corroborated him. Gulab Singh adduced no evidence in rebuttal. The learned Magistrate thereupon made his earlier order absolute. Gulab Singh went up in revision to the Sessions Judge The main point he urged before the latter was that a breach of Clause (1) of Section 139A had been committed inasmuch as the Magistrate on Gulab Singh's appearance bad omitted to "question him as to whether he denies the existence of any public right in respect of the way". The argument found favour with the learned Judge, who thereupon proceeded to make the present Reference.
(3.)The learned Judge has fallen into more error than one. In the first place, the Magistrate had a right to assume that whatever Gulab Singh's defence Was he had embodied it in his written application, and in this application there was no denial of the encroached land being part of the highway. Hence no useful purpose would have been served by putting oral questions on the same subject. By the omission to put questions under Section 139A(1) no prejudice was caused to Gulab Singh. In the analogous case of the application of Section 342 Cr. P. C, the Supreme Court in Moseb Kaka v. State of West Bengal, AIR 1956 SC 536 held :
"It is well recognised that a judgment is not to be set aside merely by reason of inadequate compliance with Section 342 Cr. P. C. It is settled that clear prejudice must be shown... it is up to the accused or his counsel in such c-ases to satisfy the Court that such inadequate examination has resulted in miscarriage of justice ..... if the counsel was unable to say that his client had in fact been prejudiced and if all that he could urge was that there was a possibility of prejudice, that was not enough".
The same principles must apply in the case of Section 139A (1) also; that is to say, unless prejudice can be clearly demonstrated, the non-questioning of the person concerned cannot be deemed to vitiate the' Magistrate's order. Secondly, the provision regarding questioning in Section 139A (1) is not mandatory, but merely directory. In Pratap Singh v. Shri Krishna Gupta, AIR1 1956 SC 140, the Supreme Court, approving the principle enunciated by the Privy Council in Punjab Co-operative Bank Ltd. v. Commr. of Income Tax, Lahore, AIR 1940 PC 230 that as general rule an absolute enactment must be obeyed or fulfilled exactly but it was sufficient if a directory enactment be obeyed or fulfilled substantially, observed :
"We deprecate this tendency towards technicality; it is the substance that counts and must take precedence over mere form. Some rules are vita! and go to the root of the matter : they cannot be broken; others are only directory and a breach of them can be overlooked provided there is substantial compliance with the rules read as a whole and provided no prejudice ensues; and when the legislature does not itself state which is which judges must determine the matter and, exercising a nice discrimination, sort out one class from the other along broad-based, commonsense lines.".
The provision in Section 139A (1) being only directory, and the Magistrate having substantially complied with the law and no prejudice having been caused to Gulab Singh, the Magistrate's final order cannot be impugned.