Digamber Ramsingh vs Emperor

Mohamad Noor, J.—This is an application directed against an order of the Subdivisional Officer of Khurda making absolute an order u/s 133, Criminal P.C., on the finding of the jury appointed u/s 138 of the Code. An application to the Sessions Judge for a reference to this Court was refused. The application for revision to this Court was filed before the learned Registrar of the Cuttack Circuit Court who has ordered it to be placed before this Court at Patna. The rule was issued by Fazl Ali, J., and it has come up for hearing before me. Nobody appears to show cause. The learned District Magistrate has referred to the explanation submitted by the Subdivisional Officer who in his turn refers to the explanation submitted by him to the learned Sessions Judge which is dated 23rd June 1933 and I have carefully considered it.

It appears that the petitioner has added a room to his house. It is alleged that this addition obstructs a public path. There was a report by the Sarbarakar on which a proceeding u/s 133, Criminal P.C., was started. Later on there was a report by the police on which a second proceeding u/s 144 of the Code was started. There was an inquiry by a Tehsildar and on the strength of his report the order u/s 144 was made absolute against the petitioner and he was directed to remove the obstruction. On revision the District Magistrate set aside the order u/s 144 and directed the Sub-divisional Magistrate to proceed with the case started u/s 133, Criminal P.C.

On a date fixed after the order of the District Magistrate, namely, on 11th May 1933, the petitioner appeared and applied for the appointment of a jury. The jury was forthwith appointed, and it was on their decision that the order complained of has been passed.

The order is attacked on two grounds, first that before the appointment of the jury'' there ought to have been a preliminary inquiry contemplated by Section 139-A, Criminal P.C., and, secondly, that the appointment of the jury was irregular. In my opinion the proceeding of the learned Magistrate must be set aside at least on the first of these two grounds. Section 139-A is a newly added section under the amendments made in the year 1923. The object is that before the criminal Court passed an order which is irrevocable there must be grounds to believe that the objection against the passing of the order has no substance. The procedure prescribed under Ch. 10 of the Code is shortly this: On receipt of a report or information a Magistrate competent to proceed under this Chapter is to issue a conditional notice for doing certain things, etc.

The person against whom such order is issued has three alternatives; either (1) to comply with the order or (2) to show cause against the order or (3) to ask for the appointment of a jury. If he does neither of these three acts he is liable to be punished u/s 188, I.P.C. If he complies with the order the matter ends there. If however he objects to the order, he must adopt either of the two courses, namely, either to show cause which means asking for an inquiry by the Magistrate or to ask for the appointment of a jury. The inquiry by the Magistrate is contemplated u/s 137, Criminal P.C. and the appointment of a jury and inquiry by them and order thereon are contemplated in Sections 138 and 139, Criminal P.C., but before a serious inquiry is started by the Magistrate or before the Magistrate proceeds to appoint a jury a summary preliminary inquiry is essential and that is provided in Section 139-A, Criminal P.C., namely, an inquiry to find out whether there is any substance in the objection.

If there is reliable evidence available in support of the denial of existence of public right, etc., the Magistrate must stay his proceedings. It should further be observed that u/s 139-A the jury is not competent to decide the existence of a public highway. The view which I have taken is supported by a decision of this Court in Mahadeo Lal and Another Vs. Hossaini Pandey and Others, . There has also been some irregularity in the appointment of the jury, but I do not think that by itself would have been a ground for setting aside the proceeding. The result is that the order of the learned Magistrate is set aside.

He should proceed from the stage at which the case was on 11th May 1933. He should first satisfy himself on the lines contemplated in Section 139-A, Criminal P.C., and should then proceed to appoint a jury or otherwise dispose of the case according to law.