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1972 DIGILAW 309 (ALL)

Babu Singh v. Parmal

1972-08-09

P.N.BAKSHI

body1972
ORDER P.N. Bakshi, J. - This is a reference by the Temporary Civil and Sessions Judge, Etawah for quashing an order passed by the Tahsildar-Magistrate IInd Class Bidhuna dated 9-6-1970 in proceedings u/s 133 Code of Criminal Procedure. 2. One Babu Singh Pradhan filed an application on 1-7-1969 u/s 133 Code of Criminal Procedure on the ground that the opposite parties were obstructing the public way by raising construction thereon. A report was called for by the Sub-Divisional Magistrate from the Tahsildar. The report was submitted to the Sub-Divisional Magistrate, Bidhuna. On being satisfied from the report of the Tahsildar, the Sub-Divisional Magistrate passed a conditional order u/s 133 Code of Criminal Procedure. He issued notices to the opposite parties requiring them to remove the obstruction within three days or to appear in his Court to show cause why the said order be not enforced against them. The opposite parties filed their objections. They denied the existence of any public right in respect of the alleged passage land which is said to have been encroached upon by their constructions and they claimed that the land belonged to them. It appears that on 27-10-1969 when part of the evidence had already been recorded by the Sub-Divisional Magistrate he passed an order transferring the case to the Tahsildar Magistrate II class, Bidhuna. The case proceeded there and on 9-5-1970 the impugned order was passed by the Tahsildar Magistrate. By this order he finally discharged the notice issued to the opposite parties. 3. Aggrieved by this order Babu Singh Pradhan filed a revision before the Temporary Civil and Sessions Judge, Etawah, who has made the present recommendation to this Court. The two points which were contended in revision were: 1. That the Sub-Divisional Magistrate, Bidhuna has erred in law in transferring the case to the court of the Tahsildar Magistrate II class, after he had called upon the opposite parties to appear in his Court and had received some evidence of the contesting opposite parties. The contention is that a proceeding u/s 133 Code of Criminal Procedure could only be transferred by the Sub-Divisional Magistrate at the time when he passes the conditional order. The contention is that a proceeding u/s 133 Code of Criminal Procedure could only be transferred by the Sub-Divisional Magistrate at the time when he passes the conditional order. The relevant portion of Section 133 Code of Criminal Procedure runs as follows: Whenever a District Magistrate, a Sub-Divisional Magistrate or a Magistrate of the first class considers, on receiving a police-report or other information and on taking such evidence (if any) as he thinks fit....such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance,....within a time to be fixed in the order...to appear before himself or some other Magistrate of the first class or second class, at the time and place to be fixed by the order and move to have the order set aside or modified in the manner hereinafter provided. A perusal of the section makes it abundantly clear that it is only at the time when a Magistrate passes the conditional order calling upon the parties to appear in pursuance of such order, that he is empowered to direct such party to appear either before him or before some other Magistrate of the First or Second Class. In other words, the power to transfer the proceedings u/s 133 of the Code of Criminal Procedure can only be exercised by the Sub-Divisional Magistrate at the time when he passes the conditional order directing the parties to appear. At no later stage is the Sub-Divisional Magistrate entitled to pass an order of transfer. In the present case the Sub-Divisional Magistrate, Bidhuna had called upon the opposite-parties to appear in his own Court. He had also recorded some evidence of the contesting opposite-parties. Thereafter he passed the impugned order directing a transfer of the case to the Court of the Tahsildar Magistrate Second Class. To my mind such an order of transfer is wholly without jurisdiction. I am supported in my view by two decisions of this Court. In Bhola v. Laxman 1950 AWR 609 Mr. Justice Raghubar Dayal as he then was held that a Magistrate passing a conditional order u/s 133 of the Code of Criminal Procedure has to exercise his power of sending the case to another Magistrate by stating in the conditional order itself that the person concerned is to appear before the other Magistrate at a certain place and time. Justice Raghubar Dayal as he then was held that a Magistrate passing a conditional order u/s 133 of the Code of Criminal Procedure has to exercise his power of sending the case to another Magistrate by stating in the conditional order itself that the person concerned is to appear before the other Magistrate at a certain place and time. He cannot pass such an order at a later stage of the proceedings. He will have no jurisdiction to pass that order and the transferee Court will have no jurisdiction to proceed with the case on account of an order so made. The same view has been expressed by Mr. Justice D.P. Uniyal in the case Hasmat v. Radhey Lal 1966 AWR 655. The view of this Court has also been accepted by a Division Bench of the Rajasthan High Court in Ram Charan Vs. Residents of Shahabad Ward Baran and Another, AIR 1958 Raj 248 . The learned Judges in that case were of the view that Section 133 of the Code of Criminal Procedure stands by itself independent of Section 192 of the Code. On the scope of Section 192 of the Code of Criminal Procedure it was held therein as follows: The competency u/s 192 may be with respect to his powers or with respect to the area for which he may be empowered to act. The restriction does not appear u/s 133. If Section 192 were to govern a case u/s 133, these special distinctions could not have found place in that section. Section 133, therefore, stands by itself independent of Section 192 of the Code. If Section 192 were to prevail these special provisions referred to above would become surplusage but the intention of the legislature does not appear to be so. A different view has, however, been taken by the Calcutta and the Patna High Courts. The latest decision of the Calcutta High Court is Mahadeb Karmakar Vs. Adhir Kumar Karmakar and Another, AIR 1970 Cal 169 . In that case it was held that: The terms of Section 133 of the Code cannot and should not construed as to exclude the general provisions of transfer contained in Section 192 of the Code. In view of the decisions of our Court expressing an opinion contrary to that of the Calcutta Court I am not inclined to agree with the decision of the Calcutta case. 4. In view of the decisions of our Court expressing an opinion contrary to that of the Calcutta Court I am not inclined to agree with the decision of the Calcutta case. 4. Counsel for the Applicant has referred to a ruling of the Patna High Court in Chanderdip Mahton v. Emperor AIR 1945 Pat 344. On the basis of this decision he has argued that the impugned order of the Sub-Divisional Magistrate transferring the proceedings u/s 133 of the Code of Criminal Procedure to another Magistrate at a subsequent stage is a mere irregularity curable u/s 537 of the Code of Criminal Procedure and that it does not amount to any illegality so as to vitiate the entire proceedings before the transferee Court. The Patna case no doubt supports his contention but it is noteworthy that even in that case the view expressed by that Court was that: If after the persons appears before him the Sub-Divisional Magistrate transfers the case for disposal to another Magistrate of the Second Glass he will not be acting in strict accordance with the provisions of Sections 133 and 137. I am, however, not inclined to accept this submission of the learned Counsel for the Applicant. Section 530(g) of the Code of Criminal Procedure refers to the irregularities which vitiate proceedings. It runs thus: If any Magistrate not being empowered by law in this behalf does any of the following things namely (g) makes an order u/s 133, as to a local nuisance: his proceedings shall be void. 5. I have already held above, that the Sub-Divisional Magistrate, Bidhuna had no power to transfer the case at the stage at which he had passed the order of transfer to the Tahsildar Magistrate Second Class. The order of transfer being itself void the entire proceedings before the Tahsildar Magistrate II class, Bidhuna would be void. 6. The second contention which had been raised in revision was that the opposite parties having denied the existence of any public right in respect of the passage in dispute, it was the mandatory duty of the trial Court to have proceeded u/s 139(a) Code of Criminal Procedure. 6. The second contention which had been raised in revision was that the opposite parties having denied the existence of any public right in respect of the passage in dispute, it was the mandatory duty of the trial Court to have proceeded u/s 139(a) Code of Criminal Procedure. He should have called upon the opposite parties who deny such right to lead evidence in support thereof and if he found that there was any reliable evidence in support of such denial he should have stayed the proceedings until the matter of existence of such right has been decided by competent Civil Court as required u/s 139(2) Code of Criminal Procedure. I find sufficient force in this contention also. It has been held times without number that when the existence of a public right is denied by the opposite party in proceedings u/s 133 Code of Criminal Procedure it is incumbent upon the Magistrate to follow the procedure u/s 139(a) Code of Criminal Procedure. That not having been done, in my opinion, the impugned order is wholly illegal. 7. For the reasons given above, I accept this recommendation and quash the order of the Tahsildar Magistrate II class, Bidhuna dated 9-6-1970. The case shall now be sent back to the Sub-Divisional Magistrate, Bidhuna, who originally took cognizance of the application u/s 133 Code of Criminal Procedure. The said Magistrate is directed to proceed with the inquiry as required by Section 139(a) Code of Criminal Procedure. The case shall now proceed in accordance with law.