Rameshwar Pathak and another vs Baijnath Rai

Dhavle, J.—This rule was issued on the ground that the Subdivisional Magistrate of Supaul had no jurisdiction to add in the proceeding he drew up under S. 145, Criminal P. C, under orders of the District Magistrate of Bhagalpur, certain plots which had originally been excluded by the Subdivisional Magistrate of Madhipura from the original proceeding that he drew up under that section. The case had been transferred from the file of the Subdivisional Magistrate of Madhipura after he had tried it for several days, and it was transferred by the District Magistrate to the Sub-divisional Officer of Supaul for disposal with a request to take it up and finish it as soon as possible

provide that he is satisfied that the conditions precedent for such a case still exist. The question as to whether more plots should be added to the land under proceedings should also be considered before the case is reopened.

As a result of this order of the District Magistrate, the Subdivisional Magistrate of Supaul drew up a fresh proceeding under S. 145 though the lands in dispute all lay within the Madhipura Subdivision, and included in the proceeding all the disputed plots, while on 24th February 1934 the Subdivisional Magistrate at Madhipura had left out such plots as were not claimed by the parties to be in their physical possession. The learned advocate for the petitioners has cited Chellapathi Naidu v. Subba Naidu, 1928 Mad 1230 = 114 I C 625 = 30 Cr L J 340 = 52 Mad 241 = 55 M L J 693 and contended that though it may possibly have been open to the Subdivisioual Magistrate of Supaul, in view of the older decisions referred to in the case cited, to continue the proceedings under S. 145, or even to draw up fresh proceedings under that section in respect of the lands included by the Subdivisional Magistrate of Madhipura in his proceeding, it was not open to him to do anything at all in respect of other plots, lying as they admittedly did outside his Subdivision and within the Subdivision of Madhipura. The learned advocate points out that the District Magistrate had not in fact made up his mind to include any new plots in the proceeding under S. 145 and concedes that if he had done so it might be that the Subdivisional Magistrate, Supaul, was entitled to deal with those plots as with the plots originally included in the proceeding of the Subdivisional Magistrate of Madhipura and for the same reason.

The case cited undoubtedly supports the contention of the learned advocate. Reilly, J., who dealt with that case, sitting singly, said: "no doubt that the order under S. 145 (1) must be made by a Magistrate having local jurisdiction over the land or water concerned," and that this was made clear both by the object and the wording of the section. Unfortunately for the petitioners the matter is concluded by authority in this Court the other way, an authority which is binding on me sitting singly. This authority was cited by Mr. Manohar Lal who appears for the opposite party, Rameshwar Dusadh v. Emperor, 1920 Pat 25 = 55 I C 593 = 21 Cr L J 321 = 1 P L T 632, decided by Mullsck and Sultan Ahmad, JJ. That was a case where the police made a report under S. 110, Criminal P.C., to the District Magistrate who in turn made it over to a First Class Magistrate in charge of the Sadr Subdivision of Bhagalpur. The District Magistrate subsequently withdrew the ease from the file of that officer and transferred it under S. 192 of the Code to the file of the Subdivisional Magistrate of Madhipura, who drew up proceedings under S. 112, calling upon certain persons to show cause why they should not be bound down. When the matter came up to the High Court in revision, it was urged that the Subdivisional Officer of Madhipura had no jurisdiction in the case inasmuch as the petitioners did not reside within the local limits of that subdivision. Their Lordships pointed out that whether the Subdivisional Magistrate of Madhipura did or did not have jurisdiction depended upon the Government notification appointing him as Magistrate. They found from the notification that the local Government had directed that the Magistrate should have charge of the Madhipura subdivision without making any order restricting his general jurisdiction over the whole district of Bhagalpur. This is exactly what has happened in the present case.

Mr. Manohar Lal has referred me to the notification appointing Babu Nand Kishore Singh to hold charge of the Supaul subdivision, and the learned advocate for the petitioners has not been able to refer me to any order of the local Government restricting the Magistrate''s general jurisdiction over the whole district of Bhagalpur. Mullick, J., in Rameshwar Dusadh''s case Rameshwar Dusadh v. Emperor, 1920 Pat 25 = 55 I C 593 = 21 Cr L J 321 = 1 P L T 632, referred to S. 12, Criminal P.C., and pointed out that although the Magistrate was placed in charge of the Madhipura subdivision, there was nothing to show that his jurisdiction over the area outside his jurisdiction as a Magistrate of the First Class was curtailed and that therefore no matter how the police report came before the Subdivisional Magistrate of Madhipura, the Magistrate as a Magistrate of the First Class had jurisdiction to take proceedings under S. 110 of the Code. He fortified himself in this view by referring to the well-known case reported in Sarat Chunder Roy Vs. Bepin Chandra Roy, .

As attempt has been made on behalf of the petitioners to argue that the terms of S. 12, Criminal P.C., cannot have been intended to override the specific provision contained in S. 145 as regards Subdivisional Magistrates. The contention overlooks the fact that jurisdiction under S. 145 is not confined to Subdivisional Magistrate''s but can also be exercised by Magistrates of the First Class. The decision in Chellapathi Naidu v. Subba Naidu, 1928 Mad 1230 = 114 I C 625 = 30 Cr L J 340 = 52 Mad 241 = 55 M L J 693 is also easily distinguishable on more than one ground. In the first place, the learned Judge did not consider the effect of S. 12, Criminal P.C., secondly he was dealing with a presidency where a District Magistrate may post one Sub-divisional Magistrate to the charge of another subdivision, which is not the case in Bihar and Orissa. Lastly, it is not open to me, as the learned advocate for the petitioners at last realised, to follow the Madras decision in preference to the ruling of a Bench of two Judges of this Court on essentially similar facts while the attempt to distinguish the ruling from Rameshwar Dusadh v. Emperor, 1920 Pat 25 = 55 I C 593 = 21 Cr L J 321 = 1 P L T 632 has broken down completely. The Subdivisional Magistrate and the Magistrate of the First Class are under no greater restrictions in proceedings under S. 145 than in those under S. 110 of the Code. The result is that the rule must be discharged and the application in revision dismissed.