Jiblal Teli and Others vs Gena Sahu and Others

Adami, J.—This application is directed against an older of the Sub-Divisional Magistrate of Madhubani passed u/s 141 of the Criminal Procedure Code, directing the petitioners to remove an obstruction in a certain road. Notice was issuer by the Magistrate u/s 133 of the Criminal Procedure Code on the application of the first party. It was alleged that an obstruction caused by the second party prevented free access to a certain well which had been used by the public. On receipt of the notice the petitioners came forward and, u/s 135, applied for the appointment a Jury. Certain members of the Jury were nominated by the parties and others by the Magistrate, and the Sub-Registrar was appointed to be Foreman of the Jury with instructions to report by the 28th April. On the 28th of April 1923 the report had not been received and time was extended till the 17th of May. On this matter date the Sub-Divisional Magistrate recorded in the order sheet that the Foreman had sent back the papers stating that he was unable to meet the other members of the Jury as he was too busy. Thereupon the Sub-Divisional Magistrate made the order absolute u/s 141- and directed the petitioners to re trove the encroachment? which had been reported to exist by the Sub-Overseer. Time was given for a report as to compliance with the older. On the 28th of July the Sub-Overseer reported that the encroachment had not been removed and the petitioners were then called upon to show cause why they should not be prosecuted u/s 188, Indian Penal Code.

Now, according to the provisions of the Code, the Sub-Divisional Magistrate had jurisdiction to pass the order that he did. The petitioner had the choice u/s 135 of either showing cause against the order u/s 133 or to ask for the appointment of a Jury. They chose the latter alternative and, u/s 141, if the Jury failed to return their verdict within the time fixed, the Magistrate had jurisdiction to make the order absolute.

Mr. Moharned Tahir on behalf of the petitioners points out that the failure of the Jury to return their verdict was not due to any fault on their side and that the order absolute was passed without their knowledge; they did not come to know about it until the notice calling upon them to show cause why they should not be prosecuted u/s 188 was received by them.

Had they known of the notice they would have applied to the Sub-Divisional Magistrate either to extend the time or to allow them to show cause and produce evidence.

Now, though, as I have said, there is no want of jurisdiction or improper exercise of jurisdiction in this matter, in the circumstances of the case, I think, that the petitioners should be given a chance of showing cause and producing evidence to show that they had aright to make the encroachments complained about. It was due to no fault of their own that the Jury had failed to perform the task alloted to them I think that the Magistrate might, in the exercise of his discretion u/s 141, have given the petitioners a chance of showing cause and satisfying himself that there was no reason to make the order absolute. The case of Kishori Lal Panuri v. Emperor 4 I.C. 72 : 13 CWN 367 : 10 CriLJ 494 seems to indicate that, where the Jury fails to perform its duty through no fault of the person against whom a conditional order has been passed, that person should be allowed to revert to the other alternative given him by Section 135. In this view, I set aside the order passed u/s 141 and direct that the Sub-Divisional Magistrate give the petitioners a chance of showing cause u/s 135 and producing such evidence as may seem fit to them. The proceedings taken u/s 188 will be set aside.