Chanderdip Mahton and Others vs Emperor

Chatterji, J.—This is an application in revision against an order made u/s 137, Crjminal P. C, by a Second Class Magistrate" making absolute a conditional order passed u/s 133 of the Code. On an application filed by the opposite party on 30th September 1942 before the Sub-divisional Officer of Chapra, he passed a conditional order u/s 133 on 30th October 1942 and issued a notice calling upon the petitioners to show cause why they should not remove their bamboo clumps from, plot No. 78 said to be a village rasta in village Fursatpur. The petitioners did not appear and show cause on the date fixed and the Sub-divisional Officer made the order absolute. Subsequently, the petitioners appeared and showed cause, and thereupon the Sub-divisional Officer by his order dated 17th February 1942 discharged his previous order u/s 133, stating that it was "not a case of very recent obstruction and no action was necessary." This later order, however, was set aside by this Court in revision and the case was remanded to the Sub-divisional Officer. After remand the Sub-divisional Officer transferred the case for disposal to a Sub-deputy Magistrate with second class power. The Sub-deputy Magistrate, after taking Cvidence and hearing the, parties made the conditional order absolute by his order dated 14th March 1944 whereby the petitioners were directed to remove the bamboo clumps from the public rasta within one month. Against this order the present application is directed. This case at first came up for hearing before Sinha J. who referred it to a Division Bench. Two points have been urged by Mr. Jaleshwar Prasad on behalf of the petitioners. The first is that the Sub-deputy Magistrate had no jurisdiction to pass the final order complained of. The argument is twofold; in the first place, it is said that the Sub-divisional Officer, after having issued notice u/s 133 calling upon the petitioners to appear before him and show cause, had no jurisdiction at a later stage to tranifer the case for disposal to some other Magistrate. In the second place, it is said that the Sub-deputy Magistrate with second class power had no jurisdiction to hear any case u/s 138. The first part of this argument is sought to be based on the provisions of Sections 133 and 137. The relevant provision of Section 188 is as follows:

Such Magistrate may make a conditional order requiring the person ausing such obstruction... to appear before himself or some other M-agistrate of the first or second class, at a time and place to be fixed by the order, and move to have the order set aside or modified in the manner hereinafter provided.

Section 137 is in these words:

(1) If he 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 is not reasonale and proper, no further proceedings shall be taken in the case.

(3) If the Magistrate is not so satisfied, the order shall be made absolute.

The wording of Section 137 suggests that the evidence should be taken and the final order should be passed by the Magistrate before whom the person against whom the conditional order u/s 133 is made is required by the order to appear and show cause. Where, therefore, a Sub-divisional Magistrate makes a conditional order "requiring the person against whom it is made to appear before himself, he should, strictly speaking, dispose of the case himself. If, after the person appears before him, the Sub-divisional Magistrate transfers the case for disposal to another Magistrate of the first or second class, he will not be acting in strict accordance with the provisions of Sections 133 and 137. But if the Sub-divisional Magistrate does so transfer the case, can it be said that he acts without''jurisdiction so that all the subsequent proceedings will be rendered void ?

The power conferred by Section 133 (1) on a Sub-divisional Magistrate to make a conditional order requiring the person against whom it is made to appear and show cause before another Magistrate of the first or second class is, in substance, a power to transfer the case to such other Magistrate for disposal. If the Sub-divisional Magistrate, instead of thus transferring the case by the conditional order itself, transfers it subsequently after the person against whom the order is made appears and shows cause before him, all that can be said is that he is exercising the power of transfer conferred by the section in an irregular man-ner. Want of jurisdiction must be distinguished from irregular exercise of jurisdiction. If the Sub-divisional Magistrate, instead of transferring the case at the initial stage, transfers it at a later stage when he has still seisin of the case, how is his jurisdiction affected? To hold that his power to transfer is lost the moment he issues the conditional order requiring the person against whom it is made to appear and show cause before himself would be highly technical. If he transfers the case at a later stage, it will be at most a mere irregularity in procedure which is cured by Section 537 of the Code. In the present case there is nothing to suggest that the irregularity complained of has in fact occasioned a failure of justice. The irregularity is also cured by Section 529 (f) of the Code which is to the effect that if any Magistrate, not empowered by law "to transfer case u/s 192," erroneously in good faith does transfer a case, "his proceedings shall not be set aside merely on the ground of his not being so empowered." Section 192 (1) runs as follows:

Any Chief Presidency Magistrate, District Magistrate or Sub-divisional Magistrate may transfer any case, of which he has taken cognizance, for inquiry or trial, to any Magistrate subordinate to him.

Section 192 occurs in part 6 which is headed "Proceedings in Prosecutions." Section 133 occurs in Part 4 which is headed "Prevention of Of-f ences."Sections 110 and 145 also occur in Part 4. It has been held by this Court that Section 192 applies to proceedings under Sections no and 145. In Hiranand Ojha v. Emperor A. I. R. 1922 Pat. 586, Coutts J. with whom Mullick J. agreed, said:

Section 192 deals with the transfer of cases. A proceeding u/s 110 is undoubtedly a case although the section does not deal with particular offences and the cognizance that is there taken is not cognizance of an offence but cognizance of a case. To say that Section 192 does not apply to proceedings u/s 110, is taking a very narrow view of the section which in my view is not authorized by the wording of that section. It has been held that Section 192 applies to proceedings u/s 145 and there is no reason why it should not also apply to proceedings u/s 110.

I see no reason to doubt the correctness of these observations, and I think, for the same reason, a proceeding u/s 133 may be said to be a case coming within the purview of Section 192. Now Part 4 of seh. 8 to the Code which specifies the "ordinary powers" of a Sub-divisional Magistrate shows that he has the power to transfer cases to a subordinate Magistrate, Section 192." If, therefore Section 192 applies to a proceeding u/s 133, the Sub-divisional Magistrate has power to transfer such pro-ceeding to a Subordinate Magistrate. But, by a reason of the particular provision of * Section 133 which I have quoted above, the power of the Sub-divisional Magistrate to transfer a proceeding under this section may be assumed to be limited to this extent that he can transfer only by the conditional order itself. Where, therefore, he transfers such proceeding at a later stage, the case is covered by Section 529 (f) of the Code, and the irregularity is cured by this section.

Reliance has been placed by Mr. Jaleshwar Prasad on the cases in Inasaddar Ali and Others Vs. Isimulla and Others, , Ata Mohammad v. Abdul Rahman A. I. R. 1937 Lah. 676 and Umrao Singh v. Kanwar Lal A. I. R. 1938 Lah. 323. In the Calcutta case it was held by Pearson and Patterson JJ., that a Magistrate initiating a proceeding u/s 133 has no jurisdiction to make over the enquiry as to the existence of a public right u/s 139A to his subordinate. There the conditional order was passed by the Additional District Magistrate and the party against whom the order was made appeared before him and denied the existence of a public path. He then made over the case to a Subordinate Magistrate for enquiry and report as to the existence of a public path. The Magistrate submitted a report after en-quiry. Relying upon that report, the Additional District Magistrate passed an order declaring that it was a public'' path. This order was set aside by the High Court. It was not a case which was transferred for disposal to another Magistrate. This decision, therefore, is not in point. In Ata Mohammad v. Abdul Rahman A. I. R. 1937 Lah. 676 Blacker J., sitting alone, held that the Magistrate mentioned in Section 139A must be the Magistrate before whom a person is ordered to appear under the last sentence of Section 133 (a). The actual ground of decision, however, was that the Magistrate did not take proceedings u/s 139A before making the final order u/s 137. The final order u/s 137 was accordingly set aside. It was also contended on behalf of the petitioner that the Magistrate who passed the final order was a Magistrate of the second class and had, therefore, no power to make an enquiry u/s 139A. This contention was overruled, because it was before that Magistrate that the party was required by the conditional order u/s 133 to appear. This decision, therefore, is not quite in point.

In Umrao Singh v. Kanwar Lal A. I. R. 1938 Lah. 323 which was also decided by Blacker J., sitting alone, it was held that where a Magistrate makes a conditional order u/s 133 requiring the person against whom it is made to appear before himself and the person appears before him and shows cause, the Magistrate must proceed with the case himself and he has no power to send it at that stage for disposal to another Magistrate. But there is hardly any discussion on the point.

On the other hand, it has been held by this Court in Jagroshan Bharthi v. Madan Pande AIR 1927 Pat. 265 decided by Jwala Prasad J., sitting alone, that where a Magistrate makes a conditional order requiring the person against whom it is made to appear before himself, he may subsequently transfer the case for disposal to another Magistrate. This case was followed by a Division Bench of this Court in 21 pat. 7596 decided by Manohar Lall J. and myself. This latter decision, however, is not in point, because there the enquiry u/s 139A was made by the Magistrate who passed the conditional order u/s 133. As at present advised, I''Bee no reason to doubt the correctness of the decision in Jagdish Singh v. Baijnath Singh AIR 1943 Pat. 759. " The next question is whether the Sub-Deputy Magistrate with second class powers to whom the case was transferred, had jurisdiction to deal with it. Our attention has been drawn to part 2, Schedule 3, Criminal P. C, which specifies the "ordinary powers of a Magistrate of the second class." In this part 2 there is no reference at all to Section 133, though part 3 of the same schedule, which specifies the "ordinary powers of a Magistrate of the first class," specifically includes "power to make orders as to local nuisances, Section 133": item (6a). Section 133 itself shows that the conditional order contemplated by it can be made only by a District Magistrate or a Sub-Divisional Magistrate or a Magistrate of the first class. An order u/s 133, therefore, cannot be made by a Magistrate of the second class. Section 133, however, provides that the conditional order may be passed requiring the person against whom it is made to appear before "some other. Magistrate of the first or second class": and according to Section 137 such other Magistrate may pass the final order. It is, therefore, clear that though a Magistrate of the second class is not competent to make a conditional order u/s 183, he may pass the final order u/s 137 if the case is transferred to him by the Magistrate making the conditional order. The jurisdiction of the Magistrate of the second class to pass the final order is derived from Section 133 and not from the conditional order which, in effect, does no more than transfer the case to'' him. His jurisdiction to pass the final order re-" mains the same, whether the case is transferred to him by the conditional order itself or at a later stage.

For the aforesaid reasons, it cannot be said that the final order passed in the present case by the Sub-Deputy Magistrate is without jurisdiction. The first point raised by Mr. Jaleshwar Prasad, therefore,''fails. The second point urged by Mr. Jaleshwar Prasad is that there has been no recent encroachment by the planting of the bamboo clumps in question, because in the survey record which was published many years ago a mango tree and a bamboo clump were shown in the remarks column against the plot 78 as being in possession of the petitioners. But admittedly the mango tree and the old bamboo clump are no longer in existence. On the evidence, the Magistrate has found that the two bamboo clumps now in existence were recently planted. On this finding it cannot be said that there has been no recent encroachment. Both the contentions raised by the petitioners fail, and the application must be dismissed.

Shearer, J.

I agree. A Magistrate of the Second Class has no more power to take cognizance of the existence of a public nuisance than he has power to take cognizance of an offence. But, once cognizance has been taken by a Sub-divisional Magistrate and the Sub-divisional Magistrate transfers the case to him, the Magistrate of the Second Class has jurisdiction to try the matter and determine whether an order for the removal of the nuisance should or should not be made. That jurisdiction, that is, jurisdiction over the subject-matter, is conferred, as my learned brother has pointed out, by the Code itself. The preliminary notice which is issued merely serves to bring the defendant before the Court and gives it jurisdiction over his person. The petitioner, in response to the notice which was issued on him appeared in the Court of the Sub-divisional Magistrate and, as a result of the order transferring the case, he also appeared in the Court of the Second Class Magistrate and contested the matter. The action of the Sub-divisional Magistrate in transferring the case at a subsequent, instead of at a prior stage of the proceeding, is a mere irregularity and obviously cannot deprive the Second Class Magistrate of his statutory jurisdiction. The petitioner was in no way prejudiced by the irregularity and at the time it occurred he took no objection to it.