Ajodha Tewari vs King-Emperor

John Bucknill, J.—This is an application made by one Ajodha Tewari asking that an order made by the Sub-divisional Magistrate of Sitamarhi directing the prosecution of the petitioner for an offence against the provisions of section 188 of the Indian Penal Code may be set aside. The matter is a very simple one. The petitioner was alleged to have obstructed a roadway. Apparently the petitioner maintains that at that time the roadway was not public. However, the police received information that there was some obstruction and they reported that the petitioner had put up a post in a path running from the village to the well and had also erected a tatti which had the effect of diminishing the width of the path. Proceedings accordingly were commenced against the petitioner under provisions of section 133 of the Code of Criminal Procedure on the 25th of May this year. The petitioner, as he had a right to do, applied to the Magistrate for a Jury in the manner provided by the provisions of section 134 of the Code of Criminal Procedure. The Jury was accordingly appointed and instructed to report on a certain day; but they did not report on the day which they had been told and on that day the Magistrate without any further ado made the conditional order which he had previously made, absolute, ordering the alleged obstructions to be pulled down. Apparently the order directed the petitioner to pull the obstructions down by the 5th of August. For some reason or other he did not do so and some days later the fact that he had not done so was brought to the notice of the Magistrate who directed him to show cause why he should not be prosecuted for an offence against the provisions of section 188 of the Indian Penal Code, i.e., for having disobeyed an order duly promulgated by a proper authority. However, a little later on the petitioner came and told the Magistrate that he had removed the alleged obstructions; but, nevertheless, the Magistrate has directed that he should still be prosecuted.

Now we must proceed a little further and as certain what has been brought to the notice of this Court. The position really is that, when the Jury had failed to return their verdict as ordered at the time fixed, the Magistrate should not have, without giving anybody an opportunity of being heard, made the order absolute. Section 141, which says that, if the Jury appointed does not retain its verdict within the time fixed, the Magistrate may "pass such order he thinks fit'' must mean that, if the Jury for any reason does not return its verdict the Magistrate must inquire into the matter before he passes an order. This is obviously only in consonance with the proper conduct of legal investigation and I cannot imagine that it could seriously be maintained that, without any investigation whatever and merely upon either an ex parte statement made by the complainant or on report by the police as to what the police may have found at the place in question, a Magistrate is really justified in passing anything but an emergency order (which is provided for by another section) without any attempt to investigate the rights and circumstances which surround the position of the affair. This view, which I think is the correct one, is borne out by the case of Raimohan Karmakar v. Emperor 1916 (44) ILR (Cal) 61 and the whole tendency of the other decisions to which I have been referred points in the same direction. Under these circumstances it appears to me that the proper course in this case is to set aside the order which was made by the Sub-divisional Magistrate on the 28th October, 1922, ordering the prosecution of the petitioner in connection with an offence against the provisions of section 188, Indian Penal Code; of course, if there is obstruction still existing (which I do not find from the papers which are at present before me) there is nothing to prevent further proceedings being taken against the petitioner and wish his being dealt in the manner provided by law.