Tejnarain Singh and Another vs Jagdeo Singh and Others

Chatterji, J.—This is an application in revision against an order made by a First Class Magistrate u/s 139A, Criminal P. C. On 16th March 1944, the members of the opposite party filed an application u/s 133, Criminal P. C, before the Sub-divisional Officer of Sitamarhi complaining that the petitioners caused obstruction to a public nala running through gairmazrua plots 229, 233, 297 and 623 in village Durahi Jagdish by filling up a portion of plot 297 and amalgamating it with their fields. The Sub-divisional Officer sent the application to the Sub-Inspector of Sheopur for enquiry. On receipt of the the Sub-Inspector''s report, the Sub-divisional Officer passed on 21st April 1944 a conditional order u/s 133 and issued a notice calling upon the petitioners "to remove the obstruc tion caused to the nala and footpath or to show cause, if any, on 19th May 1944." The footpath referred to here was said to be on both sides of the nala. The petitioners appeared on the date fixed and showed cause. They denied the existence of a public nala and asserted that portions of the plots in question were in cultivating possession of different tenants including themselves for many years. On 6th April 1944 the Sub-divisional Officer transferred the case for disposrl to an Honorary Magistrate with first class power. The petitioners filed kobalas and bharna deeds in support of their claim and also examined a witness. The opposite party filed survey map and khatian. After hearing the parties, the Honorary Magistrate passed on 20th June 1944 an order u/s 139A in these terms : "I hold that the evidence of denial of the second party is not reliable. I hold that the nala is public one. I will now proceed u/s 137, Criminal P. C."

Against this order the present application is directed. Two points have been urged by Mr. Prem Lall for the petitioners. The first is that the Sub-divisional Officer, after cause was shown before him by the petitioners in obedience to the notice issued against them, had no power to transfer the case for disposal to some other Magistrate and, therefore, the order passed by the'' Honorary Magistrate u/s 139A is without jurisdiction.'' This agreement is sought to be based on the provisions of SSection 133 and 139A. The relevant provision of Section 133 is in these words:

Such Magistrate may make a conditional order requiring the person causing such obstruction ... to appear before himself or some other Magistrate of the first or second class at a time and a place to be fixed by the order, and move to have the order set aside or modified in the manner hereinafter provided.

Section 189A (1) runs as follows:

Where an order is made u/s 133 for the purpose of preventing obstruction, nuisance or danger to the public in the use of any way, river, channel. or place, the Magistrate shall", on the appearance before him of the person against whom the order was made, question him as to whether he denies the existence of any public right in respect of the way, river, channel or place, and if he does so, the Magistrate shall, before proceeding u/s 137 or Section 138, enquire into the matter.

Reading these two sections together, it seems that the enquiry contemplated by Section 139A should be held by the Magistrate before whom the person, against whom the conditional order is made, is required by the order to appear. It does not, however, follow that where the conditional order is made by the Sub-divisional Magistrate requiring the person against whom it is made to appear before himself and he subsequently, when the person appears before him and shows cause, transfers the case for disposal to a competent Magistrate subordinate to him, the latter will have no jurisdiction to deal with the case. The power conferred by Section 133 (1) on a Sub-divisional Magistrate to make a conditional Order requiring the person against whom it is made to appear and show cause before another Magistrate of the first class or second class is, in substance, a power to transfer the case to such other Magistrate for disposal. If the Sub-divisional Magistrate instead of thus transferring the case by the conditional order itself, transfers it subsequently after the person against whom the order is made appears and shows cause before him, all that can be said is that he is exercising the power of transfer conferred by the section in an irregular manner. Want of jurisdiction must be distinguished from irregular exercise of jurisdiction. If the Sub-divisional Magistrate, instead of transferring the case at the initial stage, transfers it at a later stage when he has still seisin of the case, how is his jurisdiction affected ? To hold that his power to transfer is lost the moment he issues the conditional order requiring the person against whom it is made to appear and show cause before himself would be highly technical. If he transfers the case at a later stage, it will be at most a mere irregularity in procedure which is cured by Section 537 of the Code. In the present case there is nothing to suggest that the irregularity complained of has in fact occasioned a failure of justice. The irregularity is also cured by Section 529 (f) of the Code which is to the effect that if any Magistrate, not empowered by law "to transfer case u/s 192," erroneously in good faith does transfer a case, "his proceedings shall not be set aside merely on the ground of his not being so empowered." Section 192 (1) runs as follows:

Any Chief Presidency Magistrate, District Magistrate or Sub-divisional Magistrate may transfer any case, of which he has taken cognizance, for inquiry or trial, to any Magistrate Subordinate to him.

Section 192 occurs in Part 6 which is headed "Proceedings in Prosecutions." Section 138 occurs in part 4 which is headed "Prevention of Offences." Sections 110 and 145 also occur in Part 4. It has been held by this Court that Section 192 applies to proceedings under Sections 110 and 145. In Hiranand Ojha v. Emperor A. I. R. 1922 Pat. 586 Coutts J., with whom Mullick J. agreed, said:

Section 192 deals with the transfer of cases. A proceeding u/s 110 is undoubtedly a case although the section does not deal with particular offences and the cognizance that is there taken is not cognizance of an offence but cognizance of a case. To say that Section 192 does not apply to proceedings u/s 110, is taking a very narrow view of the section which in my view is not authorized by the wording of that section. It has been held that Section 192 applies to proceedings u/s 145 and there is no reason why ift should not also apply to proceedings u/s 110.

I see no reason to doubt the correctness of these observations, and I think, for the same reason, a proceeding u/s 133 may be said to be a case coming within the purview of Section 192. Now Part 4 of Schedule 2 of the Code which specifies the "ordinary powers" of a Sub-divisional Magistrate shows that he has the "power to transfer cases to a Subordinate Magistrate, Section 192." If, therefore, Section 192 ap. plies to a proceeding u/s 138, the Sub-divisional Magistrate has power to transfer such proceeding to a Subordinate Magistrate. But, by reason of the particular provision of Section 133 which I have quoted above, the power of the Sub-divisional Magistrate to transfer a proceeding under this section may be assumed to be limited to this extent that he can transfer only by the conditional order itself. Where, therefore, he transfers such proceed, ing at a later stage, the case is covered by Section 529 (f) of the Code, and the irregularity is cured by this section. Reliance has been placed by Mr. Prem Lall on the cases in Inasaddar Ali and Others Vs. Isimulla and Others, , Ata Mohammad v. Abdul Rahman A. I. R. 1937 Lah. 6768 and Umrao Singh v. Kanwar Lal A. I. R. 1938 Lah. 323 In the Calcutta case it was held by Pearson and Patterson JJ. that a Magistrate initiating a proceeding u/s 133 has no jurisdiction to make over the enquiry as to the existence of a public right u/s 139A to his subordinate. There the conditional order was passed by the Additional District Magistrate and the party against whom the order was made appeared before him and denied the existence of a public path. He then made over the case to a Subordinate Magistrate for enquiry and report as to the existence of a public path. The Magistrate submitted a report after enquiry. Relying upon that report, the Additional District Magistrate passed an order declaring that it was a public path. This order was set aside by the High Court. It was not a case which was transferred for disposal to another Magistrate. This decision, therefore, is not in point. In A. I. R. 1937 Lah. 6763 Blacker J. sitting alone, held that the Magistrate mentioned in Section 189A must be the Magistrate before whom a person is ordered to appear under the last sentence of Section 133 (1). The actul ground of the decision, however, was that-the Magistrate did not take proceedings u/s 139A before making the final order u/s 187. The final order u/s 137 was accordingly set aside. It was also contended on behalf of the petitioner that the Magistrate who passed the final order was a Magistrate of the second class and had, therefore, no power to make an enquiry u/s 139A. This contention was overruled, because it was before that Magistrate that the party was required by the conditional order u/s 133 to appear. This decision, therefore, is not quite in point. In Umrao Singh v. Kanwar Lal A. I. R. 1938 Lah. 323 which was also decided by Blacker J. sitting alone, it was held that where a Magistrate makes a conditional order u/s 133 requiring the person against whom it is made to appear before himself and the person appears before him and shows cause, the Magistrate must proceed with the case himself and he has no power to send it at the stage for disposal to another Magistrate. But there is hardly any discussion on the point.

On the other hand, it has been held by this Court in Jagroshan Bharthi v. Madan Pande A. I. R. 1927 Pat. 265 decided by Jwala Prasad J., sitting alone, that where a Magistrate makes a conditional order requiring the per-son against whom it is made to appear before himself, he may subsequently transfer the case for disposal to another Magistrate. This case was followed by a Division Bench of this Court in 21 Pat. 7596 decided by Manohar Lall J. and myself. This latter decision, however, is not in point, because there the enquiry u/s 139A was made by the Magistrate who passed the conditional order u/s 133. As at present advised, I see no reason to doubt the correctness of the decision in Jagdish Singh v. Baijnath Singh A. I. R. 1943 Pat. 115. For the reasons given above, the first point raised by Mr. Prem Lall must fail. The second point argued by Mr. Prem Lall is that in view of the kobalas and bharna deeds produced by the petitioners in support of their claim, the learned Magistrate''s finding, "The evidence of denial of the second party is not reliable" is not justified in law. One of the bharna deeds is dated 10th January 1936, and, on the strength of this document, it has been argued that the petitioners have been in cultivating possession of portions of the alleged nala for the last 7 or 8 years. Such long possession, it is said, may be taken as a bona fide assertion of claim ousting the jurisdiction of the criminal Court to pass a summary order u/s 133. In support of this contention reliance has been placed chiefly on the cases in Thakur Sao v. Abdul Aziz A. I. R. 1926 Pat. 170 and Bhajoo Gope v. Gholam Haider (40) 193 I. C. 336. In the first case which was decided by Mullick and Ross JJ. the headnote runs thus:

The procedure laid down in Section 139A, Criminal P. C, 1898, requires, first, that the party against whom a provisional order has been made, shall ap pear before the Magistrate and deny the existence of the public right in question; secondly, that he shall produce some reliable evidence ; and, thirdly, that such evidence shall be legal evidence and shall sup port the denial. If these three conditions are satis fied, then the Magistrate''s jurisdiction to continue the proceeding ceases. He has no jurisdiction to weigh the evidence and decide on which side tts balance leans.

This decision, however, does say, as the section itself requires, that the party shall produce some reliable evidence. In the second case which was decided by Dhavle J., sitting alone, his Lordship observed:

Long user by a person of what is claimed to be a part of the public way may be taken as a bona fide assertion of claim ousting the jurisdiction of the criminal Court to pass a summary order u/s 133 against him.

But with reference to the facts of that case, his Lordship said:

It does not appear on what materials the learned Magistrate came to the conclusion that it was a public passage.

In. the present case the learned Magistrate points out that among the documents produced by the petitioners, the only one that is relevant is the bharna deed dated 10th January 1936. This bharna deed covers an area of 3 kathas out of plots 674, 675 and 623. Out of these three plots, plot 623 is the only plot which is covered by the nala. It appears that plot 623 has a much bigger area out of which a very small portion is covered by the bharna deed. The encroachment, however, of which complaint was made was in respect of plot No. 297. This plot is said to have been recently filled up by the petitioners. From the survey map, it appears that the nala runs from one end of the village to the other and passes to the adjoining villages. The plots have been recorded as nala in the survey record. In the circumstances, I do not think, the learned Magistrate was wrong in holding that there was no reliable evidence on behalf of the petitioners that the nala is not a public one. Both the contentions raised by the petitioners fail, and the application must be dismissed.

Shearer, J.

I agree.