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1960 DIGILAW 11 (PAT)

Jangal Prasad v. Ramesar Prasad

1960-01-15

R.K.CHOUDHARY

body1960
Judgment R.K.Choudhary, J. 1. This is a reference made by the Additional Sessions Judge of Saran under Section 438 of the Code of Criminal Procedure. The short facts are these : 2. There was a report by the Sub-Inspector of Police, Ghuthni about an apprehension of a breach of the peace between Jangal Prasad, the petitioner before the Court below, and Ramesar Prasad, the opposite party in that Court, relating to survey plot No. 2479 of village Ghuthni. A proceeding under Section 144 of the Code of Criminal Procedure was drawn up against both the parties. The petitioner, however, appeared, and made a prayer that the proceeding should have been started under Sec.133 of the Code of Criminal Procedure; and the Sub-divisional Magistrate converted the above proceeding into one under Section 153, and passed a conditional order under that section asking the first party Ramesar Prasad to remove the encroachment or to show cause, if any On 26-2-1958, the opposite party showed cause, and the following order was passed: "O. P. present. S/C filed. Heard the lawyers of the parties. S/C does not appear to be satisfactory. The matter has to be thrashed out in court. Put up on 10-3-58 for transfer. On 10-3-1958, however, the opposite party filed an application for appointment of jury, and, ultimately, a jury was appointed consisting of five members, as required by law. Two of the jurors, however, did not take part in the deliberations, and the remaining three jurors gave their verdict, according to which the drain, after coming out of the house of the opposite party, flowed touching the house of the petitioner which caused damage to his house, as the drain was a kuchcha one, and it was suggested that another drain, which should be a pucca one, should be constructed leaving a space of ten inches from the house of the petitioner, and the cost of constructing this pucca drain should be borne half and half by both the parties. The learned Sub-divisional Magistrate then passed the following order: "Parties present. Seen the verdict of the jury and it is accepted. Let the work be completed according to the verdict of the juri and to which they are agreeable. The learned Sub-divisional Magistrate then passed the following order: "Parties present. Seen the verdict of the jury and it is accepted. Let the work be completed according to the verdict of the juri and to which they are agreeable. Let the report of completion be submitted by 11-10-58." On the next date the petitioner filed a petition stating that the verdict of the jury was not legal, and praying that a local inspection should be held by the Magistrate, After some dates, the learned Sub-divisional Magistrate passed an order saying that there was nothing wrong in the verdict of the jury and that should be implemented, and directed the Sub-Inspector to call the parties and get an estimate prepared through the Block Overseer and get the work done. He also directed the parties to bear the costs according to the verdict of the jury. The petitioner then filed a criminal revision before the, learned Sessions Judge, Saran, which was heard by the Additional Sessions Judge there. He, however, came to the conclusion that, since all the jurors did not take part in the deliberations, the verdict was illegal, and the Magistrate should have proceeded under Sec.141 of the Code of Criminal Procedure. In that view of the matter, he has made the present reference for setting aside the order of the learned Magistrate accepting the verdict of the jury and for sending the case back to the Magistrate for proceeding according to law. 3. In support of the reference, reliance has been placed on a decision of this Court in Rajaram Singh V/s. Keshari Rai, AIR 1942 Pat 468 : 43 Cri LJ 423 in which it was held that all the jurors must take part in the deliberations of the jury, and unless they had done so, there could be no verdict of the jury. Applying the above principle of law, it has to be held in the present case that there was no legal verdict of the jury which could be acted upon, 4. Applying the above principle of law, it has to be held in the present case that there was no legal verdict of the jury which could be acted upon, 4. Sec.141 of the Code of Criminal Procedure provides : "If the applicant, by neglect or otherwise, prevents the appointment of the jury, or if from any cause the jury appointed do not return their verdict within the time fixed or within such further lime as the Magistrate may in his discretion allow, the Magistrate may pass such order as he thinks fit, and such order shall be executed in the manner provided by Sec.140." The verdict of the jury being illegal, it is apparend that there was no verdict before the Subdivisional Magistrate as having been given by the jury within the time fixed by him. Therefore, the Magistrate should have proceeded under the above Sec.141 and passed such order as he may have thought fit. It is contended on behalf of the petitioner in support of the reference that, this not having been done, the order of the learned Sub-divisional Magistrate, referred, to above, is wrong in law. There is no doubt about the correctness of the principle of law involved in this case, as stated above. Mr. Angad Ojha, appearing against the reference, however, has contended that, on the facts of this case, it must be held that the Magistrate did proceed under Sec.141 of the Code of Criminal Procedure. He has submitted that the Magistrate did not pass the order only on the verdict of the jury, but his order was based also upon the agreement arrived at between the parties in terms of the verdict of the jury. It is contended that the order recorded on agreement of the parties must be taken to be a sufficient compliance" with the provisions of Sec.141. There appears to be much substance in this contention, and the order of the Magistrate cannot be challenged on the ground of non-compliance with the provisions of Sec.141 of the Code. 5. Mr. Jha, appearing in support of the reference, however, has relied on a different point. There appears to be much substance in this contention, and the order of the Magistrate cannot be challenged on the ground of non-compliance with the provisions of Sec.141 of the Code. 5. Mr. Jha, appearing in support of the reference, however, has relied on a different point. He has advanced an argument that, under Sec.135 of the Code of Criminal Procedure a person against whom a conditional Order has been made under Sec.133 of the Code has to perform the act directed by the Magistrate, or to appear in accordance with such order and either show cause against the same, or apply to the Magistrate by whom it was made to appoint a jury to try whether the same was reasonable and proper. His argument is that, on a conditional order having been passed, the party has option either to show cause or to pray for the appointment of jury, but he cannot avail of both the remedies, namely, show cause and also apply for appointment of jury. In this case, as already stated, on 26-2-1958, the opposite party showed cause, and it was only on the next date, that is, 10-3-1958, that he applied, for the appointment of jury, and the learned Magistrate appointed the jury accordingly. The course adopted, by the learned Magistrate has been contended to be in derogation to the provisions of law and thus to be illegal, in support of this contention, reliance has been placed on a decision of the Calcutta High Court in Kishori Lal Panuri V/s. Emperor, 13 Cal WN 367. In that case it was held that the party against whom a conditional order under Sec.133 of the Code of Criminal Procedure is made cannot both show cause against the order and ask for the appointment of a jury, and that Sec.135 of the Code gives the person against whom the conditional order is made the right to adopt either of these alternatives. It was further held that if he adopts the former alternative, the Magistrate is bound to take action under Sec.137, and, if he adopts the second alternative then the Magistrate is bound to take action under Sec.138, and that both Sections 137 and 138 are imperative in their terms, and the Magistrate has no discretion in the matter. This decision fully supports the contention of the learned Counsel for the petitioner and I agree with the same. This decision fully supports the contention of the learned Counsel for the petitioner and I agree with the same. The order of the Magistrate appointing the jury is itself illegal, and, after cause was shown, the Magistrate should have proceeded to take evidence, as provided in Section 137 of the Code of Criminal Procedure. 6. It further appears that in, this case the Magistrate, on the appearance of the person against whom the conditional order was made, did not question him as to whether he denied the existence of any public right in respect of the subject-matter of the dispute, as required by Sec.139A of the Code of Criminal Procedure. The order of the Magistrate appointing the jury is, therefore, bad in law also on this ground. 7. The reference is, accordingly, accepted, not for the reasons given by the learned Additional Sessions Judge, but for the reasons stated above, and the, orders of the Magistrate dated 12-8-1958 and 5-2-1959 are set aside, and the case is sent back to the learned Magistrate for proceeding in accordance, with law from the stage of the appearance of the opposite party in the case.