SURESH CHANDRA Vs. PUTTU LAL

JUDGEMENT

(1.) WHEN this case came up for hearing before our brother Md. Hamid Hussain. he appears to have been of the opinion that there was a conflict in the decisions of this court with regard to the applicability of Section 192 of the Code of Criminal Procedure to proceedings following a conditional order passed under Section 133 Sub-section (1) of the Code. In order to resolve the conflict, he referred this case to a larger Bench and as a result it has come up before us.

(2.) THE relevant facts giving rise to this Reference are that applicant Suresh Chandra by an application D/- 1st July, 1965. moved the Sub-Divisional Magistrate. Kannauj, to initiate proceedings under Section 133 of the Code against opposite-party Puttu Lal for removal of some alleged unauthorised encroachments from what was claimed to be a public pathway. The case appears to have had a chequered career and ultimately the Sub-Divisional Magistrate called for a report from the Tehsildar. who recommended that notice under Section 133 of the Code be issued to Puttu Lal. Consequent on the report of the Tehsildar on the 28th March. 1968, the learned Sub-Divisional Magistrate passed a conditional order as contemplated by Section 133 Sub-section (1) of the Code requiring the opposite-party to remove the offending encroachments within fifteen days of the receipt of the notice and if he had any objection to comply with the directions to appear before himself on the 20th April, 1968, and to move to have the order set aside On the date fixed opposite party Puttu Lal appeared before the learned Sub-Divisional Magistrate and filed objections showing cause against the conditional order. On the 9th May. 1968, the record discloses. the learned Sub-Divisional Magistrate enquired from Puttu Lal as to whether he had encroached upon the village Pathway existing on plot no. 1626 by digging a ditch therein and extending the boundaries of his plot Nos. 1615 and 1766 thus causing an unlawful obstruction in the public path. In answer to the question put to him. Puttu Lal stated that he had caused no obstruction to the public path either by digging a ditch thereon or extending the boundaries of his fields. The question was put and answer obtained by the learned Sub-Divisional Magistrate apparently in compliance with the provisions of Section 139-A of the Code On the 19th August. 1968, the learned Sub-Divisional Magistrate passed an order transferring the case to the court of the Tehsildar Magistrate. Kannaui for disposal. By that order the learned Sub-Divisional Magistrate directed the parties to appear before the Tehsildar-Magistrate on the 26th August, 1968. In pursuance of the order proceedings continued before the learned Tehsildar-Magistrate, who ultimately by his order dated 14th July, 1969. dropped the proceedings having come to the conclusion on the basis of the evidence recorded by him that it had not been established that Puttu Lal had caused obstruction to any public path.

(3.) AGGRIEVED by the order Suresh Chandra invoked the revisional jurisdiction of the Additional Sessions Judge, Farrukhabad. It was contended on behalf of the applicant that the order passed by the learned Sub-Divisional Magistrate transferring the case to the Tehsildar-Magistrate. Kannauj. was illegal and consequently the entire proceedings before the Tehsildar-Magistrate leading up to the ultimate order were illegal and invalid. The learned Sessions Judge following the decisions by Raghubar Dayal. J in Bhola v. Lachman and by D. S. Mathur. J. in Kishori Lal v. State AIR I960 All 244) held that the order of the learned Sub-Divisional Magistrate. Kannauj dated 19th August. 1968. transferring the case to the Tehsildar-Magistrate, Kannaui. for disposal as well as the order dated 14th July, 1969. passed by the Tehsildar-Magistrate were both illegal and deserved to be quashed. Hp consequently made a reference to this Court recommending the quashing of the two orders.