Jagdish Singh vs Baijnath Singh

Chatterji, J.—This is a reference u/s 438, Criminal P.C., made by the Additional District Magistrate of Patna recommending that the order dated 2nd April 1942 passed by the second officer, Dinapore, u/s 139, Criminal P.C., calling upon the second party to remove an encroachment be set aside. On 21st August 1941 Jagdish Prasad Singh and three others called the first party filed an application before the Sub-divisional Magistrate, Dinapore, alleging that Baijnath Singh and eight others called the second party had encroached on plot 1828 which was recorded in survey as "gair mazrua am rasta" and praying that the second party might be ordered to remove the said encroachment as it constituted a public nuisance. The Sub-divisional Magistrate by his order dated 12th September 1941 issued notice u/s 133, Criminal P.C., against the second party calling upon them to remove the encroachment from the public path or to shew cause on 10th October 1941. On 10th October 1941 cause was shown by the second party who claimed the said land as their private path. The Sub-divisional Magistrate fixed 5th November 1941 for taking evidence on this point. After taking evidence the Magistrate found that it was a fit ease for action u/s 133, Criminal P.C. On 3rd January 1941 the Sub-divisional Magistrate passed the following order:

Draw up proceedings u/s 133, Criminal P.C., against the second party to show cause with evidence before the Second Officer on 24th January 1942 why they should not remove the encroachments.

On 24th January 1942 the second party appeared and took time. On 2nd February 1942, they applied for the appointment of a jury u/s 135, Criminal P.C. A jury was accordingly appointed. The jury submitted their report. The second officer, accepting that report, made the original order absolute against the second party and called upon them to remove the encroachment by 4th May 1942. Against this order the second party moved the Additional District Magistrate to refer the matter to this Court. The Additional District Magistrate, being of opinion that the second officer had no jurisdiction to hear the case or appoint a jury, has referred the matter to this Court. Mr. Ganesh Sharma who appears in support of the reference argued, in the first place, that the second officer had no power to hear the case at all. It is said that the Sub-divisional Magistrate, having held the enquiry u/s 139A, should have himself disposed of the case. I am unable to accept this contention. Section 139A, so far as it is relevant to our present purpose, runs as follows:

(1) Where an order is made u/s 133 for the purpose of preventing obstruction, nuisance or danger to the public in the use of any way, river, channel or place, the Magistrate shall, on the appearance before him of the person against whom the order was made, question him as to whether he denies the existence of any public right in respect of the way, river, channel or place, and if he does so, the Magistrate shall, before proceeding u/s 137 or Section 138 inquire into the matter.

(2) If in such inquiry the Magistrate finds that there is any reliable evidence in support of such denial, he shall stay the proceedings until the matter of the existence of such right has been decided by a competent civil Court; and, if he finds that there is no such evidence, he shall proceed as laid down in Section 137 or Section 138, as the case may require.

It is thus clear that the inquiry under this section precedes the stage of inquiry u/s 137 or Section 138. Section 137(1) provides:

If he appears and shows cause against the order, the Magistrate shall lake evidence in the matter as in a summons case.

There is nothing in the Code to prevent the Sub-Divisional Magistrate who passed the conditional order u/s 133 from transferring the case to some other Magistrate for making inquiry u/s 137. In my opinion, the Sub-Divisional Magistrate in the present case was quite competent to transfer the case to the second officer. I am supported in this view by the decision of this Court in Jagroshan Bharthi Vs. Madan Pande, . In that ease the person against whom the conditional order was passed by the Sub-Divisional Magistrate appeared before him and showed cause. The Sub-Divisional Magistrate then transferred the case to another Magistrate for disposal. The Magistrate to whom the case was transferred took evidence and discharged the conditional order u/s 137(2). The case was referred by the Sessions Judge to this Court with the recommendation that the order passed u/s 137(2) should be set aside, inter alia, on the ground that the Magistrate who passed that order had no jurisdiction to hear the case. This ground was held to be untenable by Jwala Prasad J. who said:

Babu Sheonandan Prasad (who was the Magistrate to whom the case was transferred) was competent to dispose of the rule and pass final order upon the inquiry made and the evidence taken by him.

Mr. Ganesh Sharma, in the next place, argued that the second officer had no power to appoint a jury. This contention must prevail. Section 135, Criminal P.C., provides:

The person against whom such order is made shall--(a) perform, within the time specified in the order, the act directed thereby, or (b) appear in accordance with such order and either show cause against the same, or apply to the Magistrate by whom it was made to appoint a jury to try whether the same is reasonable and proper.

It is therefore clear that the application for the appointment of a jury must be made to the Magistrate by whom the conditional order u/s 133 was passed. Then Section 138 provides that on receiving the application u/s 135 to appoint a jury the Magistrate shall "forthwith appoint a jury consisting of an uneven number of persons not less than five." This also shows that the appointment of a jury must be made by the same Magistrate to whom the application for the purpose is made. In the present case the application for the appointment of jury was made to the second officer and he appointed the jury. From the terms of Section 135 and Section 189, it is clear that he had no jurisdiction to entertain the application for the appointment of a jury. In this connexion the following observation of Jwala Prasad J. in the aforesaid case is relevant:

It is only when the person against whom the notice is issued appears and demands a jury u/s 135 that the matter must be disposed of by the Magistrate issuing the conditional rule, and not by any other Magistrate to whom the case might have been referred for inquiry.

In my view therefore the appointment of a jury was without jurisdiction. The second officer had, of course, jurisdiction to hear the case and proceed u/s 137. He should have taken evidence and disposed of the case as provided in that section.

I would accordingly accept the reference to this extent that the second officer had no jurisdiction to appoint a jury and that the final order passed by him in accordance with the verdict of the jury should be set aside. I would set aside the final order passed by the second officer and remand the ease to him for disposal according to law in the light of the observation made above.

Manohar Lall, J.

I agree.