JUDGMENT : 1. This application in revision by Ram Bilas Singh, second party in the proceeding under Section 133 of the Code of Criminal Procedure (hereinafter referred to as the Code), is directed against the Magistrate's final ORDER :dated 5.3.1970 in that proceeding. Under this ORDER :the Magistrate has directed him to remove the encroachment and the obstruction, complained against, on the public land by a specified date failing which it would be done through court at his cost. 2. It was reported to the Circle Officer, Fatwah, district Patna, that this petitioner and Janardan Singh had encroached upon public way passing on Gairmazarua Aam plots 219, 223 and 224 in village Masnadpore within Fatwah Police Station. The Circle Officer, on being satisfied about their such encroachments, sent a report to the Fatwah Police Station for needful. In turn, the officer-in-charge of the Fatwah Police Station in his report dated 18.1.1969 sent through his Inspector, after testifying to the correctness of those allegations against these persons, requested the Sub-Divisional Magistrate for action under Section 133 of the Code against them. After looking into that police report, the Subdivisional Magistrate, in his ORDER :dated 12.3.1969, noticed these two persons (Ram Bilas Singh and Janardan Singh) to show cause why they should not be made to remove those encroachments. On 1.7.1969, this petitioner (Ram Bilas Singh) appeared before the Magistrate and filed a petition for time on the ground that in ORDER :to file his show cause he had to obtain copies of certain papers. The case was, accordingly, adjourned to 8.7.1969. Time was again taken on 8.7.1969 and on the next date fixed, i.e., 30.7.1969 members of the second party were warned that if they did not file their show cause by the next date (11.8.1969) it would be presumed that they had no show cause to file. On 11.8.1969 Janardan Singh filed his show cause. The Subdivisional Magistrate then transferred the case to the file of Shri P.D. Sahay, Magistrate, First Class; for disposal with direction that the other opposite party (Ram Bilas Singh) might file his show cause there. The case continued in this court on some dates, but he (Ram Bilas Singh) did not care to file any show cause till 11.10.1969, when a petition was filed on his behalf in court. The case continued in this court on some dates, but he (Ram Bilas Singh) did not care to file any show cause till 11.10.1969, when a petition was filed on his behalf in court. It is significant to find that in the heading of this petition it was first typed as "show cause petition on behalf of Ram Blias Singh", but before its filing in court the word "show cause" before the word "petition" was scored through. So, it came to court in the shape of a simple petition on his behalf. In paragraph 7 of this petition he (Ram Bilas Singh) specifically claimed for appointment of a Jury to decide the case. On receiving this petition, learned Magistrate separated the cases of the two opposite parties (Ram Bilas Singh and Janardan Singh). He appears to have done so because Janardan Singh denied the existence of public right over his portion of the land and claimed it to be his land, exclusively. Accordingly, he decided to proceed under Section 139A of the Code, so far as his case was concerned. Since, however, Ram Bilas Singh had requested for the appointment of a Jury, he allowed his prayer in that behalf and called upon him to give names and addresses of the two jurors by 7.11.1969 saying that he would also appoint the remaining 2 jurors and the foreman by that date. In due course, he submitted the names of two Jurors. On 20.10.1969, he appointed 4 jurors 2, his nominees and the other 2 nominated by Ram Bilas Singh. He also appointed one Mukhiya Parmeshwar Singh as the foreman. The foreman, under his ORDER :s, was summoned to receive the record of the proceeding with a direction that they should deliberate in the meanwhile and submit their verdict by 12.12.1969. Subsequently, on his (Ram Bilas Singh's) petition, his 2 jurors were replaced by two new jurors by the Magistrate and the foreman was informed accordingly. The report of the jurors was duly submitted to the Magistrate through the foreman. It was, however, noticed that one of the jurors, i.e., Kameshwar Singh (subsequent nominee of Ram Bilas Singh) had not participated in the deliberation nor had joined in the verdict of the other four jurors. The report of the jurors was duly submitted to the Magistrate through the foreman. It was, however, noticed that one of the jurors, i.e., Kameshwar Singh (subsequent nominee of Ram Bilas Singh) had not participated in the deliberation nor had joined in the verdict of the other four jurors. After receipt of that Jury report learned Magistrate heard both sides on 14.2.1970 in part and on the next date (19.2.1970) heard learned counsel at length and reserved his ORDER :s which he eventually made on 5.3.1970 and it is this ORDER :which is under challenge in this revision. 3. Mr. Birendra Kumar Roy appearing for the petitioner has assailed the Magistrate's ORDER :in question on the following grounds. The first is that as soon as his client had appeared in the case on 1.7.1969 it was mandatory on the Magistrate to question him as to whether be denied the existence of public right in the land concerned as required under Section 139 A of the Code and his failure to do so made the subsequent proceedings wholly void and illegal. To support this, he has relied upon the authority in (1) Jangal Prasad V. Rameshwar Prasad (1960 B.L.J.R. 349). Secondly, in his petition dated 11.10.1969, as filed before the Magistrate he had clearly denied the existence of any public right on the alleged way over which he is said to have encroached and obstructed. In that view it, became imperative on the Magistrate to hold a summary enquiry within its Subsection (2) to find out if his client possessed any reliable evidence in support of his denial and if he could produce it, to stay his hand further till the matter of the existence of such a right had been decided by a competent civil court. Since the Magistrate had not complied with this mandatory provision of the statute his subsequent proceeding into the matter must be deemed to be wholly invalid. For this he has referred to the authority in (2) Darsan Ram V. The State and others (A.I.R. 1959 Patna 81) and in (3) Sukhdeo Bhagat V. Govind Gope and others (1956 B.L.J.R. 737). At the third place, his contention is that under Section 135 (b) of the Code the petitioner was required to apply for the appointment of Jury to the Magistrate who had issued the conditional ORDER :, in this case the Subdivisional Magistrate. At the third place, his contention is that under Section 135 (b) of the Code the petitioner was required to apply for the appointment of Jury to the Magistrate who had issued the conditional ORDER :, in this case the Subdivisional Magistrate. But it will be seen that his prayer to that effect was not made to that Magistrate but before the transferee Magistrate almost two months after the transfer of the case. That being so, it was wholly illegal on the part of the transferee Magistrate to act on that prayer and appoint Jury, and, as such, the verdict of the Jury submitted to the Magistrate was wholly illegal and could not be acted upon. For this he has relied upon the ruling (4) Jagdish Singh V. Baijnath Singh (A.I.R. 1943 Patna 115). Fourthly, in the police report submitted in the case his structures had been described to be old ones and in that context the Subdivisional Magistrate was wholly un-justified in initiating a 133 proceeding in the matter to get rid of it. Fifthly, under Section 138 (1) (b) of the Code it was incumbent upon the Magistrate to summon the foreman of the Jury to attend at such place and time as the Magistrate thought fit. But from the record it would appear that he had not done so but left this matter to the discretion of the foreman. Lastly, after the Magistrate decided to discard the verdict of the Jury on the ground that one of them had not participated in the deliberations nor was party to that decision, he was left with no material to decide the matter as done. If after leaving out that verdict the Magistrate thought it better to proceed in the matter to come to a conclusion, he should have held enquiry in accordance with the provision of Section 137 allowing both sides to produce their witnesses and other evidence in support of their respective cases. But he did not do so. 4. As it appears, there is no substance in any of the aforesaid contentions addressed by the petitioner. As already observed, when this petitioner appeared before the Magistrate on 1.7.1969, he prayed for time to enable him to obtain copies of certain documents to file his show cause, which was allowed. But he did not do so. 4. As it appears, there is no substance in any of the aforesaid contentions addressed by the petitioner. As already observed, when this petitioner appeared before the Magistrate on 1.7.1969, he prayed for time to enable him to obtain copies of certain documents to file his show cause, which was allowed. He did not thereafter file any show cause before that Magistrate or even before the transferee Magistrate till 11.10.1969 when he filed his aforesaid petition claiming for Jury to decide the matter. As subsequent discussions will show in this petition dated 11.10.1969 there was nothing which could be treated as his denial of the existence of any public right in respect of the way concerned. In these circumstances, there could be no question on the part of the Magistrate of interrogating him on 1.7.1969 or even on any subsequent date as to whether he denied existence of the public right claimed. On 1.7.1969 he prayed for time giving out that he would be filing his show cause later after obtaining copies of certain papers. As such, how could the Magistrate anticipate as to what was going to be his defence in that show cause so as to question him about his denial, if any, of the public right. 5. Learned petitioner's counsel has invited my attention to his statements in paragraphs 5 and 6 of his above petition dated 11.10.1969 and urged that they clearly amounted to his denial of any public right in this land. I am, however, unable to agree with him on this point. In paragraph 5 his statement was that he had not encroached on any public land, rather he completely denied it. In paragraph 6, he stated that he had not obstructed any rasta of the public and no member of the public faced any difficulty in passing near his house. As they stand, I am unable to treat them as his denial of the existence of any public right of the contemplation of Section 139 A(1). At the most he meant to deny his alleged encroachment on any public land. Immediately after these statements, in paragraph 7 he claimed for the appointment of Jury for deciding the matter. 6. As they stand, I am unable to treat them as his denial of the existence of any public right of the contemplation of Section 139 A(1). At the most he meant to deny his alleged encroachment on any public land. Immediately after these statements, in paragraph 7 he claimed for the appointment of Jury for deciding the matter. 6. On the above facts, the only way left open to the Magistrate was to appoint jury as prayed for in that petition of his without in any way resorting to any enquiry under Section 139-A. And, as shown above, the Magistrate had actually taken steps to appoint jury on that basis. 7. As already stated the Magistrate after having appointed the Jurors and foreman summoned the latter to attend his court on the date fixed (29.11.1969.) to receive the record of the proceeding for the needful. He also directed them to return the verdict by a certain date (12.12.1969). From the ORDER :sheet of the Jury, which is on record, it appears that except the juror Kameshwar Singh, all of them had assembled at a fixed place and after having visited the site and looked into the papers and heard witnesses they fixed 2.2.1970 for their verdict. On that date (2.2.1970) those four assembled again and recorded their unanimous decision and sent it to the Magistrate. Regard being had to these things, it is impossible to read any illegality or impropriety on the part of the Magistrate in resorting to those steps in this behalf. 8. There in nothing in the police report submitted in the case to show that the encroachment complained against at the hands of this petitioner was quite an old one so that it was improper on the part of the Magistrate to try to get rid of it in this summary way. In that report, the officer-in-charge alleged that he (Ram Bilas Singh) has built a fencing as a khand over plot No. 219. The Sub-Inspector's remark about the oldness of the structures, as it struck him, related to the houses said to have been built by other villagers and not to the above fencing as raised by this petitioner. Evidently, therefore, the Magistrate was not in wrong to initiate such a proceeding in the matter on the facts available to him at that stage. Evidently, therefore, the Magistrate was not in wrong to initiate such a proceeding in the matter on the facts available to him at that stage. As it appears from the JUDGMENT : of the Magistrate, even during the hearing of the case no material was furnished before him on behalf of this petitioner to prove that those were his old structures and could not be removed in this summary way and if the party aggrieved thereby so desired he could appropriately move the Civil court for getting them demolished. 9. On the above enumeration, I am inclined to think that none of the aforesaid rulings, namely, (1) 1960 B.L.J.R. 349, (3) 1956 B.L.J.R. 737 and (2) A.I.R. 1959 Patna 81 can come to petitioner's help to have the impugned ORDER :set aside because of its being hit by any such vital defects. A comparative study of the instant facts, as referred to above, with the facts in those cases, makes it clear that they are quite distinguishable. In those cases, the averments made by the parties concerned did involve their denial of the existence of the public right vis-a-vis the lands concerned. It was in that context that omissions on the part of the Magistrates in not restoring to the mandatory requirement of law at those stages were noticed by the High Court and necessary consequences followed, however, this cannot be done because, as already shown, there was no such denial in the proceeding by the petitioner at the appropriate stage. Regard being had to these facts, I would not consider it necessary to discuss these authorities in any detail. It is, I think, sufficient to say that on the facts of this case they would not seem to apply and cannot, therefore, be helpful to the petitioner in support of his cause urged here. 10. From the above recitals of the case in the court below, it is manifest that the prayer of this petitioner for the appointment of the Jury was not made before the Subdivisional Magistrate who had initially issued the conditional ORDER :under Section 133 of the Code, rather, it was made in his petition dated 11.10.1969 filed before the transferee Magistrate to whom the case had come on transfer from that of the Subdivisional Magistrate as per his (Subdivisional Magistrate's) ORDER :dated 11.8.1969. In this connection, learned petitioner's counsel has referred to the principle as laid down in the aforesaid Division Bench case in (4) A.I.R. 1943 Patna 115 (Jagdish Singh V. Baijnath Singh) that the application for the appointment of Jury must be made to the Magistrate by whom the conditional ORDER :under Section 133 is made. In that case, after the Subdivisional Magistrate had issued the conditional ORDER :the opposite party appeared and showed cause claiming the land to be their private path whereafter the Subdivisional Magistrate took their evidence on that point on a date fixed for the same and then ORDER :ed for drawing up a proceeding under Section 133 against the second party to show cause with evidence before the Second Officer by a specified date why they should not remove the encroachments. On that fixed date, the second party appeared and took time and then on the next date they applied to the Second Officer for the appointment of a Jury under Section 135 and on that basis the Second Officer appointed the jury who, in due course, submitted their report. On the basis of that report, the Second Officer made the original conditional ORDER :absolute against the second party and called upon them to remove the encroachment by a certain date. On those facts, learned Judges of the Bench in that case held that from the terms of Sections 135 and 139 it was clear that the Second Officer had no jurisdiction to entertain the application for the appointment of Jury and so his appointment of the Jury was without jurisdiction. Accordingly, the learned Judges accepted the reference to the extent that the Second Officer had no jurisdiction to appoint the Jury and the final ORDER :passed by him in accordance with the verdict of the Jury should be set aside, and they set aside that final ORDER :as passed by the Second Officer and remanded the case to him for disposal according to law in the light of the observations made by them. 11. As it appears to me, it would be difficult for the petitioner to get the impugned ORDER :set aside relying upon this authority (4) [A.I.R. 1943 Patna 115]. As already stated, this ORDER :of the Magistrate was not passed on the verdict of the Jury so appointed by him. 11. As it appears to me, it would be difficult for the petitioner to get the impugned ORDER :set aside relying upon this authority (4) [A.I.R. 1943 Patna 115]. As already stated, this ORDER :of the Magistrate was not passed on the verdict of the Jury so appointed by him. In fact, he has refused to rely upon that verdict in as much as one of the 4 Jurors had not taken part in the deliberations nor was a party to that decision. The Magistrate's JUDGMENT : in the case is based upon the materials on record to which he had duly applied his mind after discarding that verdict of the Jury. In this connection it is noteworthy to recall that the petitioner had never filed any show cause before the Subdivisional Magistrate inspite of his having taken time to do the same. He also failed to do so before the transferee Magistrate even though the Subdivisional Magistrate in his transfer ORDER :had allowed his opportunity to do it in that court. Ultimately, on 11.10.1969 he filed a petition before the transferee Magistrate in which he prayed for appointment of Jury for the first time. Not only that, he also filed a list of his 2 Jurors to him and then the Magistrate appointed his 2 nominees as also the foreman. Subsequent to that, on the request of the petitioner, his previous 2 jurors were substituted by new Jurors and it was one of these two new nominees of his who did not participate in the Jury deliberations and had also refused to join the unanimous decision of the other four. When that Jury report came, the Magistrate heard both sides in part on 14.12.1970 and then finally at length on 19.2.1970 in the case. He (petitioner.) does not however, seem to have even whispered any objection against this Magistrate's appointment of the Jury on the ground that it was the Subdivisional Magistrate who was to do so as required by Section 135(b). It is only after he has lost the case in the final JUDGMENT : of the Magistrate that it has struck him to raise this plea in the present revision to make it a ground for getting the ORDER :quashed. It is only after he has lost the case in the final JUDGMENT : of the Magistrate that it has struck him to raise this plea in the present revision to make it a ground for getting the ORDER :quashed. These facts apart, there is complete paucity of material on the record to show that by that appointment of the Jury at the hands of the transferee Magistrate before whom, for the first time, he had made this prayer, he had in any way been prejudiced at the trial of this case. So also, there is nothing to show that this had occasioned any failure of Justice in the case. Naturally, there could be no question of any such prejudice or failure of Justice in the matter on this account because, as already noted, the Magistrate had refused to act on that verdict of the Jury which suffered from the defect of one of the jurors having not joined the deliberations and decision. In such circumstances, I have no doubt in my mind that it is late for the petitioner to make it a ground for getting rid of the impugned ORDER :which the Magistrate appears to have made after considering the materials on the record accepting them as reliable and convincing. For these reasons, I am unable to think that this contention of the petitioner can prevail as to get the Magistrate's ORDER :in question quashed on this score. 12. Similar to his above contentions his last contention also appears to be unsubstantial. As it appears from the record, the trying Magistrate had called for the relevant record of the Circle Officer on being petitioned for it by the first party. In due course, those records were received, by the Magistrate. No objection appears to have ever been raised on behalf of this petitioner in that court against the calling for and use of those records by him. In. fact, as it is pointed out, both parties had advanced their arguments in the case at length, whereafter the Magistrate pronounced his JUDGMENT :. As the JUDGMENT : shows, those papers of the Circle Officer clearly indicated that on receiving the report of such encroachment on the public way the Circle Officer had got an enquiry done into the matter and found the allegation true. As the JUDGMENT : shows, those papers of the Circle Officer clearly indicated that on receiving the report of such encroachment on the public way the Circle Officer had got an enquiry done into the matter and found the allegation true. In that connection, he had got the necessary measurements at the spot done by deputing his Circle Amin which was as per written request of this petitioner (Ram Bilas Singh) in which he (Ram Bilas Singh) had said that if any encroachment was found on the rasta he would remove it immediately. The Anchal Amin after he held local inspection and measurements of this site, had prepared his maps and submitted them to the Circle Officer along with his report clearly indicating about existence of such encroachment on that rasta with its dimensions. The Magistrate appears to have adverted his attention to all these relevant facts and discussed them in detail in the ORDER :so passed. It has not been possible for the petitioner to show any illegality in the Magistrate's doing so for arriving at his decision in the case. In such a situation, the petitioner's accusation against the Magistrate that after he had discarded the verdict of the Jury he had absolutely no material before him to come to the conclusion as done, does not seem to be at all justified. It cannot, therefore, be taken to be a ground for this Court's interference with the ORDER :in question. 13. In the result of my above discussions, I have no manner of doubt that this revision is without merit and must fail. It is, accordingly, dismissed. Appeal dismissed