Dwarka Singh and Others vs Lal Bihari Singh

Imam, J.—This is an application in revision against the order of the learned Magistrate in a proceeding u/s 133 of the Code of Criminal Procedure, by which he has directed the second party, namely, the petitioners before me, to remove an obstruction on a public lane.

The only point taken before me is that, if the learned Magistrate had made an inquiry u/s 139-A of the Code and if he found that the proceeding should continue, as there was no substance in the denial, the learned Magistrate should have given the petitioners a chance to elect either to have the matter heard by a jury or to show cause. The learned Magistrate did not do that; that is to say, he did not give to the petitioners a chance to elect. It appears from the judgment of the learned Additional Sessions Judge, who dismissed the application before him, that the petitioners had made a prayer for the matter being heard with a jury. I would quote a portion of his judgment.

"My attention has been drawn to a petition dated 1-2-55 at page 54 of File ''B''. In this petition the petitioner prayed that the case be tried by a jury. But this petition was filed long after the show-cause petition dated 15-8-54 and the order of the learned Sub-divisional Officer under Sub-section (1) of Section 139-A Cr. P. C. dated 11-12-54. That being the position, the learned Sub-divisional Officer rightly disposed of that petition on 17-3-55 with the following observations:--

"Seen the record. It appears that the opposite parties (the petitioners) have already shown cause and the case has been transferred for taking evidence. u/s 135 the petition for appointment of Jury should nave been filed in case there was no show-cause. As such the petition is not entertainable now, and is filed. File with the record."

In my opinion, the learned Additional Sessions Judge as well as the learned Magistrate have committed an error regarding procedure.

u/s 133 of the Code of Criminal Procedure, the Magistrate passes a conditional order. Thereafter, the order shall be served on the person against whom it has been made and then it is the duty of the Court to proceed to inquire u/s 139-A of the Code. When that is done and if the Magistrate is satisfied the proceedings should continue then it is the duty of the Magistrate to give a chance to the person against whom the conditional order has been passed to elect whether he would show cause against the allegations in the complaint or he would like the Magistrate to appoint a jury to try the matter. Unfortunately, Section 139-A is wrongly placed. It should have come immediately after Section 134 of the Code of Criminal Procedure. This is obvious from Section 139-A, Sub-section (3). It says:

"A person who has, on being questioned by the Magistrate under Sub-section (1), failed to deny the existence of a public right of the nature therein referred to, or who, having made such denial, has failed to adduce reliable evidence in support thereof, shall not in the subsequent proceedings be permitted to make any such denial, nor shall any question in respect of the existence of any such public right be inquired into by any jury appointed u/s 138".

It is, therefore, clear from this sub-section that the matter can be tried by a jury even after the matter has been inquired into u/s 139-A of the Code. In this connection, I would refer to the decision of the Calcutta High Court in Shamji Tricumdas Bhatia and Others Vs. Ram Moye, , where it was observed as follows :--

"It is open to a person, against whom an order u/s 133, Criminal Procedure Code has been made absolute, to elect to have the matter tried by a jury after the Magistrate has finished the enquiry u/s 139-A of the Criminal Procedure Code."

In my opinion, therefore, the order of the learned Magistrate must be set aside because a right of the petitioners that the matter may be tried by a jury was denied to them when the law gave him that right. The order of the Magistrate, therefore, is set aside and the case is sent back to the Magistrate for disposal in accordance with law; that is to say, he will now appoint a jury to try the matter as prayed for by the petitioners and then dispose of the case in accordance with law. The application is accordingly allowed.