Raghubans Das vs Emperor

Reuben, J.—This is a petition in revision for the quashing of proceedings u/s 138, Criminal P.C. which are pending in the Court, of the Sub-Divisional Magistrate of Hajipur.

The proceedings relate to survey plot No. 3459 in mauza Balgaon Chandpura Buzrug. The plot is described in the proceeding as a public path, and the petitioner has been directed to remove certain encroachments therefrom said to have been made by digging pits in the land. It is urged that the proceeding is bad ab initio for for want of jurisdiction, on the ground that a previous proceeding for the same purpose and relating to the same plot was stayed by an order udder Section 139A, Criminal P.C.

The order u/s 139A was passed on the 8-11-1944, by the predecessor-in-office of the present Sub-Divisional Magistrate. It notes that the land in question has been recorded in the settlement khatian as uncultivated land forming the mafi brit of the petitioner, and that there is nothing to conclude that any portion of it is used as a road. After referring to the khatian, the Sub-Divisional Magistrate concluded:

Thus it shows that opposite party has prima facie-claim over this plot as his uncultivated land, may it be used by him as a road or like that, and such no further steps should be taken in the proceeding till it be decided by civil Court as required by Section 139A(2).

This was a perfectly competent order the provisions of Section 139A, Sub-section (2), and properly referred the parties to get the matter decided by the civil Court. In spite of this, on the 7-1-1945, the opposite party Saukhi Lal Rai, applied again for proceedings u/s 133 in respect of this plot. This application was rejected by the then Sub Divisional Magistrate who regarded it as being "an out come of old enmity."

The matter has now again been re-agitated and this time the objection of the petitioner, denying the existence of public rights, has been rejected by the learned Sub-Divisional Magistrate on the ground that the evidence adduced by him merely shows that the land belongs to him; but this does not exclude the possibility of the land, nevertheless, being used as a road. It appears to me that, on the principle that it is for the interests of the s State that there should be an end of litigation,'' the Sub-Divisional Magistrate had no jurisdiction; to re-open the matter which had already been referred to the civil Courts by a competent order under the Code.

The case in Satish Chandra Sen Vs. Krishna Kumar Das and Others, has been cited as an authority that an order u/s 139A, Sub-section (2) does not exclude the jurisdiction of the Magistrate to draw fresh proceedings u/s 133 on proper materials. The facts of that case are somewhat difficult to ascertain from the judgment. A rule was directed against an order of a Deputy Magistrate passed u/s 139A, Criminal P.C. staying proceedings u/s 133. It was issued on two grounds first, that the Magistrate was wrong in disposing of the case without examining the witnesses produced by the petitioner, and secondly, that, in view of the procedure followed by the Magistrate, a final order u/s 137 ought to have been passed on 25-5-1929. On the first ground their Lordships held that the procedure followed by the Magistrate was in accordance with the law. In dealing with the second ground, their Lordships mention that an application was made to the Magistrate in January 1929, on which the Magistrate asked the second party to show cause. On this, the second party filed a written statement, but failed to file papers which the Magistrate thereupon called for. The Magistrate then ordered a local enquiry by the police, and, the on receipt of the police report drew up proceedings u/s 133. It was contended on these facts that the Magistrate had no right to draw two proceedings; but their Lordships rejected the contention, holding that their was nothing in the law to prevent the Magistrate from drawing up fresh proceedings based on proper materials. The same case is reported in Kalu Mian Vs. Emperor, which report gives us the date of the order under revision as the 25-6-1929, that is, subsequent to the date on which, according to the second contention, the proceeding u/s 133 should have been disposed of by a final order u/s 137. It seems clear from this that the second proceeding, with which their Lordships were concerned, was drawn up before the order u/s 139A. That this was the case would also appear from the remarks of their Lordships towards the end of the judgment: "then, again, the order of the Magistrate staying-proceedings may relate to any one or both the proceedings." As I have said, the rule was directed against an order staying proceedings started u/s 133; apparently, the order had been treated as applying to both the proceedings u/s 133.

On the above grounds, I would allow the petition, and quash the proceedings u/s 133.