Chandrika Koeri vs Budhu Dusadh

Bucknill, J.—This was a reference made to this Court by the Sessions Judge of Shahabad under the provisions of Section 438 ac the Criminal Procedure Code. The circumstances under which this reference is made are somewhat unusual. It would appear that a certain Budhu Dusadh, Chaukidar of Mauza Ataon, complained by petition to the Sub-Divisional Magistrate of Buxar, purporting to do so u/s 133 of the Criminal Procedure Code. The complaint was to th0 effect that one Chandrika Koeri and others had obstructed a public village path by using a portion of it for their khalihans. The Sub-Divisional Magistrate thereupon asked the Sub-Inspector of Police to report, after making an enquiry, as to whether the road was a public road and whether there had been encroachment. It would seem that the Writer Head-Constable held a local enquiry and submitted a report on the 17th December last to the effect that Chandrika and other''s mentioned had not encroached on the public road and h� recommended that no action should be taken. However, on the 4th Januaray, Budhu Dusadh, filed a further petition impugning the correctness of the Police report and praying that the Magistrate, that is to say, tb0 Sub-Divisional Officer, should personally hold an enquiry. Apparently, the Sub-Divisional Officer after reading through the petition, passed the following order:

I am not satisfied with the report. Draw proceedings u/s 133 and fix 21st January 1923 for appearance before the Deputy Magistrate for moving to have the order set aside or modified.

The Deputy Magistrate then proceeded to hold an enquiry. Chandrika Koeri duly appeared and filed a written statement in which he alleged inter alia that he had held his khalihans upon the locality in question for a very long time; that he h id acquired a right of easement over the portion of the property, and that the Criminal Court had no jurisdiction to deal with the matter under the provisions of Section 133. The Deputy Magistrate found, however, that the path was a public path and that it had been to some extent obstructed by Chandrika Koeri on account of his having placed there his khalihan and also some sugar machine. The Deputy Magistrate made a report to the Sub-Divisional Magistrate recommending Chandrika''s prosecution u/s 133 of the Criminal Procedure Code and removal of the obstruction referred to. The Sub-Divisional Magistrate on the 23rd February makes the following order which is now the subject-matter of the present reference:

I have read the evidence adduced on both sides and have seen the Deputy Magistrate''s report. I am satisfied that there has been an obstruction on a public path.

The Rule u/s 133 is made absolute. Chandrika Koeri and others are ordered to remove the obstruction within a week.

Now, the matter was then taken to the Sessions Judge and two points, both of considerable importance, were before him. In the first place, it was urged that the Sub-Divisional Magistrate had no authority to make the Rule absolute upon the evidence recorded and upon a report submitted toy the Deputy Magistrate. There is, however, little doubt that the Sub-Divisional Magistrate was certainly entitled under the provisions of the section to order, after making the conditional order, the party against whom that order was operative, to appear before either himself or some other Magistrate of the First or Second class. The question, however, as the Sessions Judge points out, is as to what officer should pass the final order, that is to say, whether it is the Magistrate -ho issued the conditional Rule or the Magistrate before, whom the petitioner was ordered to appear. The learned Sessions Judge refers to the authority of In re. Varastmha [1886] 9 Mad. 201 which seems to lay down that it is not illegal, although it is undesirable, for a First Class Magistrate to call on the officer who reports on a nuisance in his administrative capacity to decide judicially whether there has been a nuisance or not. He deduces, and I think rightly, from this that the Sub-Divisional Magistrate was competent to make the conditional Rule absolute upon the evidence recorded and the report submitted So him by the Deputy Magistrate to whom he had referred the matter under the last paragraph of Clause (1) of Section 133 of the Criminal Procedure Code.

The second point which was urged before the learned Sessions Judge appears, however, to present somewhat greater difficulty. It is that the Sub-Divisional Magistrate had no jurisdiction to make the conditional order absolute because there was a bona fide claim by Chandrika Koeri of private right. There is no doubt that in hid written statement he put forward this claim and, according to the Sessions Judge, there is equally no doubt that certain witnesses who were examined on behalf of Chandrika depose that Chandrika had had this so called obstruction on this land for a considerable length of time.

Now, it is laid down, in the case of Queen-Empress v. Bishessur Sahu [1890] 17 Cal. 562 that in a proceeding u/s 133 of the Criminal Procedure Code, for the purpose of compelling the removal of an, obstruction from a public way where a bona fide question as to the way being public is raised, there is no jurisdiction to make an order under the section and the question should be left for determination by the Civil Court. To have this effect, however, the claim must be bona fide and not mere pretence to oust jurisdiction and it is for the Magistrate to say whether the claim is bona fide or not.

Now, in this case, the Sessions Judge is at some pains carefully to point out that, although it was evidently strongly urged before the Magistrate that there was a claim of right on behalf of Chandrika yet the Magistrate did not come to any finding as to whether it was or was not a bona, fide claim. He may have, it is, true, and no doubt did, by inference drawn from the fact that he found that the road was a public one and that there had been encroachment, come to the conclusion that Chandrika''s claim of right was not substantial, but he did not record any finding at any time as to whether Chandrika''s claim was so or a pretence to oust jurisdiction of the Magistrate. The learned Sessions Judge, therefore, considers that this was irregular and that the present order making the Rule absolute should be set aside and that the Magistrate should be directed after notice to both the parties to investigate the complaint de novo and to record a finding as to whether Chandrika''s claim is a bona fide one or not; whether it is a correct one is another matter. If his claim is a bona fide claim the matter cannot be dealt with under the provisions of Section 183 of the Criminal Procedure Code. If it is not a bona fide claim, but merely a pretext to oust the jurisdiction of the Magistrate under the provisions of that section then the fact should be recorded. This reference must, therefore, be accepted. The order of the Sub-Divisional Magistrate of Buxar dated the 23rd February last must be, set aside and the matter must be investigated de novo.