Rajaram Singh vs Keshari Rai and Another

Agarwala, J.—A conditional order u/s 133, Criminal P.C., was issued against the petitioner calling upon him to show cause why he should not remove an alleged obstruction on a public lane. The petitioner appeared and showed cause in which he claimed that the land on which the obstruction stood was not a public lane but was private property. He also asked for the appointment of a jury. The Magistrate recorded that the cause shown was not satisfactory and proceeded to appoint a jury. A date was fixed for the jury to meet and another date was fixed on which they were directed to submit their report. After a number of extensions of time on the application of one or other of the jurors a report was eventually submitted by four of them. It appears from the ordersheet that only four of the jurors had attended the meeting. Rightly holding that the report of the four jurors could not be accepted, the Magistrate then proceeded to take evidence from both the parties and eventually passed an order making absolute the conditional order u/s 133.

The order is challenged on two grounds. In the first place it is contended that the Magistrate has not complied with the mandatory provisions of Section 139A. That section requires that when a person on whom a conditional notice u/s 133 has been served appears and denies the existence of the alleged public way, the Magistrate shall, before deciding the matter or appointing a jury, "enquire into the matter." Sub-section (2) then provides that if the Magistrate in such enquiry finds that there is any evidence in support of the denial, he shall stay the proceedings until the existence of the public right has been decided by a competent Court. Now there are a number of cases in this Court in which it has been pointed out that a Magistrate is not entitled to usurp the jurisdiction of the civil Court. He must enquire from the person on whom the notice is served whether he denies the existence of the public right and then he must decide whether there is any reliable evidence in support of the denial. If he fails to do so and proceeds to make the order absolute, he acts without jurisdiction. In the present case, however, the Magistrate in finding that the cause shown was not satisfactory and complying with the petitioner''s request that a jury should be appointed, appears to me to have substantially complied with the provisions of the law. Had the petitioner at the time of showing cause tendered any evidence to the Magistrate in support of his denial or asked the Magistrate to fix a date for hearing such evidence, the Magistrate would have been bound to accede to the request of the petitioner; but the petitioner neither tendered any evidence in support of the cause which he showed against the conditional order nor asked the Magistrate to give him an opportunity of producing such evidence.

It is nevertheless contended that the Magistrate was bound to "enquire into the matter" as required by Section 139A. These words, in my opinion, merely J mean that he is to hear any evidence that the petitioner wants him to hear before proceeding further. If there is no evidence, there is nothing for the Magistrate to enquire into. The first objection, therefore, is overruled.

It is next contended that the Magistrate was not entitled to make the order absolute himself without appointing a fresh jury. Reference was made to the decision in Dasya v. Nibaran Chandra AIR 1920 Cal. 161 and to a decision of a single Judge of this Court in Kewal Saran Singh Vs. Kamla Pati Lal and Others, . The facts of the Calcutta case were that the jury that was appointed was defective. In spite of the defect in the constitution of the jury the Magistrate accepted the verdict which they gave and passed orders in accordance with it. It was held that he should not have accepted the verdict of the defective jury, but should have appointed a fresh jury. In the single Judge case of this Court to which I have referred, the facts were that a person who was unfit to be a juryman was appointed. The verdict of the jury was accepted and the Magistrate passed orders in accordance with that verdict. Following the Calcutta case it was held that the verdict being of a jury which was defective by reason of the appointment of an unfit person should not have been acted upon. In the present case the Magistrate proceeded u/s 141, Criminal P.C. That section provides, inter alia, that if from any cause the jury appointed do not return their verdict within the time fixed or within such further time as the Magistrate may in his discretion allow, the Magistrate may pass such order as he thinks fit. It is contended that this section has no application because the jury did return a verdict within the extended time which Magistrate allowed. That, however is not the case. The verdict of four out of five jurors is not the verdict of the jury. The jury by law consisted of five persons and although it is not necessary that the jurors shall return a unanimous verdict, they must all take part in the deliberations of the jury and unless they do so, there can be no verdict of the jury. In my opinion there was no verdict of the jury and therefore the Magistrate was entitled to pass such order as he thought fit, as provided by Section 141. He might have proceeded to appoint a fresh jury or, as in the present case, to hear the evidence and, on that evidence, come to a decision whether the conditional order should be made absolute. The only limitation on his power is that pointed out by Sir John Bucknill in Ajodhya Tewari v. Emperor AIR 1923 Pat. 131, that he should hear the parties. This he has done in the present case and therefore there can be no possible objection to the order which he has passed. That also was the procedure adopted in Jiblal Teli and Others Vs. Gena Sahu and Others, . In that case the jury not having returned a verdict the Magistrate proceeded to pass orders without hearing the parties. Adami, J. while setting aside the order, directed the Magistrate to hear the parties before passing an order u/s 141. That the Magistrate in the present case has already done and it is therefore not necessary to interfere with his order. The rule is discharged.