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1973 DIGILAW 123 (PAT)

Barti Singh v. Narain Das Seth

1973-07-13

R.P.SINHA

body1973
Judgment R.P. SINHA, J. This application in revision is against the order dated the 20th July, 1970, passed by Shri V.N. Shukla, Magistrate, First Class, Bhabua, in a proceeding under section 133 of the Code of Criminal Procedure 2. It appears that on the 17th December, 1969, the petitioners along with opposite second party filed a petition before the Sub Divisional Magistrate, Bhabua, stating that the opposite first party, who were the second party in the court below, had encroached upon plot Nos. 1129 and 1570, which are public Rasta, and plot No. 1170, which is a public payne, and had created obstructions to the public use of the Rasta and the payne, and prayed that the obstructions should be removed by taking, action under section 133 of the Code of Criminal Procedure. The Sub Divisional Magistrate called for a report from the Block Development Officer, Bhabua, and on receipt of the report from him on 21.4.1970, the Sub Divisional Magistrate, Bhabua, ordered for drawing up a proceeding under section 133 of the Code of Criminal Procedure against the opposite first party asking them to remove the obstruction or to appear before Shri V.N. Shukla, Magistrate, First Class, Bhabua, who was acting for the Sub Divisional Magistrate on that date. After service of show cause notice, opposite party Nos. 1 and 4 to 6 appeared before Shri Shukla on 23.6.1970 and filed a petition praying for time to file show cause, and time was allowed till 6.7.1970. On 8.7.1970, opposite party Nos. 1 and 4 to 6 filed a petition before Shri Shukla under section 135 of the Code of Criminal Procedure stating that the obstruction had been placed by the petitioners, and not by them, and prayed for appointment of jury. On the same date the petitioners and opposite second party filed a petition before the learned Magistrate drawing his attention to the provision of section 139 A of the Code of Criminal Procedure and prayed for complying with the provisions of the said section on the appearance of the opposite first party before him, namely, that they should have been questioned by the learned Magistrate as to whether they denied the existence of any public right, and in case of their denial he should have proceeded to enquire into the matter before proceeding under section 137 or 138 of the Code of Criminal Procedure. By the impugned order, the learned Magistrate rejected the objections of the petitioners and ordered the case to be placed on 17.8.1970 for appointment of jury. 3. Learned counsel appearing on behalf of the petitioners urged before me that the learned Magistrate was not competent to appoint jury in this case on the petition of opposite party Nos. 1 and 4 to 6 because the appointment of jury could be ordered only by the Magistrate who had passed the order for drawing up a proceeding under section 133 of the Code of Criminal Procedure, and not by the transferee Court. It may be stated here that Shri Shukla had passed the order for drawing up the proceeding under section 133 of the Code of Criminal Procedure when he was functioning as the Sub-Divisional Magistrate in absence of the permanent Sub Divisional Magistrate on 21.4.1970 and had also transferred the proceeding to his own file as a Magistrate First Class. It was further submitted that Shri Shukla having drawn up the proceeding under section 133 as the Sub-Divisional Magistrate, he could not pass the order for appointment of jury as a transferee Court under the provision 135 (b) of the Code. 4. The learned Magistrate after hearing the parties has passed the impugned order dated 20.7.1970 where he has held as follows: "If the O.P. appears and does not show cause and applies for a jury, the court has no jurisdiction to enquire into the matter either u/s 139 (A) or 137 Cr. P.C. The court has only alternative to appoint a jury u/s 135 Cr. P.C." On the second point also, the learned Magistrate has held that since the proceeding under section 133 of the Code of Criminal Procedure had been drawn up by him and thereafter it was transferred to his file, he was quite competent to entertain the petition of the opposite party for appointment of jury. 5. Learned counsel appearing on behalf of the petitioners has referred to the decision in the case of Jangal Prasad v. Rameshwar Pd. 5. Learned counsel appearing on behalf of the petitioners has referred to the decision in the case of Jangal Prasad v. Rameshwar Pd. In paragraph 6 of this decision it has been laid down as follows : "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 S. 139-A of the Code of Criminal Procedure, the order of the Magistrate appointing the jury is, therefore, bad in law also on this ground." Learned counsel has also referred to a decision in the case of Sitaram Lohar vs. Pashupati Lohar. The decision in this case supports both the points raised by the learned counsel for the petitioners. It has been held in this case that an application for appointment of a jury has to be made before the Magistrate who passed the conditional order and such appointment can be made by that Magistrate and not by the transferee Magistrate. It has been further held in this case that under section 139-A of the Code certain preliminaries have to be observed before a proceeding under section 137 or section 138 of the Code. 6. In this case, no jury has been appointed by the learned Magistrate, and so the second point actually does not arise to be decided. The learned Magistrate is, however, completely wrong in thinking that without having complied with provisions of section 139-A of the Code, he can proceed with the enquiry and entertain the application for appointment of a jury by the Opposite party No. 1 and 4 to 6. Section 139-A (1) is quite clear and there is no ambiguity in it. The Magistrate has to question, on the appearance before him of the person against whom the order under section 133 of the Code has been passed, as to whether he denies the existence of any public right, and on his denial, he has to enquire into the matter, before proceeding under section 135 or section 137 Or section 138 of the Code. 7. In view of what has been stated above, there cannot be any doubt that the order of the learned Magistrate dated the 20th July, 1970, is entirely wrong, illegal and cannot be upheld. 7. In view of what has been stated above, there cannot be any doubt that the order of the learned Magistrate dated the 20th July, 1970, is entirely wrong, illegal and cannot be upheld. The order of the learned Magistrate is, therefore, set aside and the case is sent back to him to proceed according to law. The application is, accordingly, allowed. Case remanded.