Jagroshan Bharthi vs Madan Pande

Jwala Prasad, J.—This is a reference u/s 438 of the Code of Criminal Procedure by the Sessions Judge of Saran, recommending that the order passed by Babu Sheonandan Prasad, Deputy Magistrate, dropping the proceedings and discharging the rule issued u/s 133 of the Code of Criminal Procedure against the second party be set aside and the case be heard according to law.

The ground urged in support of the reference is that Babu Sheonandan Prasad, to whom the case was made over by the Sub-Divisional Officer for disposal, was not competent to pass the final order in the case and that he should have sent back the record to the Sub-Divisional Officer, after recording the evidence, for passing final order.

The second ground urged is that the said Magistrate having found that there was some encroachment on the public road in question he was wrong in holding that there was no nuisance committed such as is contemplated by Section 133 of the Code.

The first ground is not tenable. The learned Sessions Judge says that the Magistrate who issues a conditional rule u/s 133 of the Code of Criminal Procedure is alone competent to make the rule absolute upon the evidence recorded and report submitted to him by another Magistrate to whom he had referred the matter under the last paragraph of Clause 1 of Section 133 of the Code and for this he relies upon Chandrika Koeri Vs. Budhu Dusadh, . That case does not lay down that the Magistrate before whom the person, against whom the conditional order is passed, is directed to appear and show cause is not competent to dispose of the matter upon the inquiry held by him vide in re. Narasimha [1886] 9 Mad. 201, Preonath Dey v. Gobordhone Mala [1897] 25 Cal. 278. and Venkanna 2 Weir 61. Babu Sheonandan Prasad, in his decision, dated the 25th August 1926, makes a distinction between an order made by the Magistrate issuing a conditional rule and directing the petitioner to appear before himself or some other Magistrate and to move to have the order set aside or modified. He says that whereas the Sub-Divisional Magistrate who issued the conditional rule was competent to direct in that rule that the person against whom the order was made should appear before Him (Babu Sheonandan Prasad), the Sub-Divisional Officer not having done so, and having directed the person complained against to appear before himself, he was not competent afterwards to make over the case to him (Babu Sheonandan Prasad) for disposal.

In the present case the person against whom the conditional order was passed before the 7th June, by the Sub-Divisional Officer showed cause and did not claim jury u/s 135, Clause (b) of the Code of Criminal Procedure. The Sub-Divisional Officer directed the parties to adduce evidence and fixed the 26th of June. On the 7th July the Sub-Divisional Officer made over the case to Babu S.N. Prasad for favour of disposal. Babu Sheonandan Prasad took evidence and disposed of the case by discharging the rule u/s 137, Clause (2) of the Code. He also held that the reference to him for disposal was irregular and that the Sub-Divisional Officer who issued the conditional order u/s 133 and directed the petitioner to appear before himself should have "himself disposed of the matter. In this view the Magistrate is wrong. There is nothing in the Code to prevent the Sub-Divisional Officer who made the conditional rule u/s 133 from referring the matter to another Magistrate subordinate, to him for disposal.

This view is supported by the following cases; Manipur Dey v. Bidhu Bhushan Sarkar [1914] 42 Cal. 158, Queen-Empress v. Bissessur Sahu [1890] 17 Cal. 562 and Preonath Dey v. Gobordhone Malo [1897] 25 Cal. 278. 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 opinion, Babu Sheonandan Prasad was competent to dispose of the rule and pass final order upon the inquiry made and the evidence taken by him. The first ground urged by the learned Sessions Judge, therefore, must fail,

The second ground, however, is substantial. In the present case Babu Sheonandan Prasad came to the finding that there was encroachment upon the public road, but he refused to make the conditional rule absolute upon the ground that it did not cause any inconvenience. Encroachment upon a public road such as the one in the present case, as is obvious from the map made by the Amin, is an obstruction to the public path and is a nuisance in itself u/s 268 of the Indian Penal code. No length of user can justify an encroachment upon a public way. The question of a sufficient width of the road being left, in support of the encroachment, for public use is no ground for allowing the encroachment or obstruction to continue.

The public has a right to the use of every inch of the public path or way, and nobody has a right to encroach upon any. portion of it: Municipal Commissioners of Calcutta v. Mahomed Ali [1905] 7 Bom. L.R. 499 as pointed out in the case of Preonath Dey and Ors. v. Gobordhone Malo [1897] 25 Cal. 278. Therefore, the order of Babu Sheonandan Prasad is illegal and must be set aside. The case must be sent back to the Sub-Divisional Officer for holding a fresh inquiry into the matter and dispose of it in accordance with law.

Another error committed in the course of the inquiry by Babu Sheonandan Prasad was the omission to come to a finding whether the claim made by the opposite party was bona fide or not. The question of possession is relevant for the purpose of finding out whether the claim is bona fide or not. If the claim is held to be bona fide then the rule must be discharged. If it is held to be not bona fide, and if there be encroachment upon public path, the rule must be made absolute. This is the procedure laid down in the aforesaid decisions.

The reference is, therefore, accepted.