JHATU CHARAN DAS Vs. BHANU CHANDRA DAS

JUDGEMENT

(1.) This Rule is directed against an order of a Magistrate, First Class, Contai, dated 10-10-1955 by which a certain conditional order was made absolute under Section 137 (3), Criminal P. C.

(2.) The proceedings were instituted at the instance of the opposite party and they appear to have had a rather chequered career which it is necessary to notice.

(3.) On 26-3-1955 the opposite party filed a petition whereupon the Sub-divisional Magistrate of Contai directed the issue of a notice on the petitioners to show cause why proceedings under Section 133, Criminal P. C. should not be drawn up against them. On the 20th April the petitioners appeared and prayed for time to show cause. Time was allowed till the 30th April. On the last mentioned date the petitioners appeared and produced certain papers in support of their contention. Obviously, the Magistrate was not satisfied as to the plausibility of the case made by the petitioners and then directed proceedings under Section 133, Criminal P. C. to be drawn up as between the petitioners as second party and the opposite party as first party thereto. The Sub-divisional Magistrate made a conditional order requiring the petitioners either to remove the obstruction from the plot in question or to appear and move to have the order set aside or modified before the Magistrate named in the order, viz. Sri A. D. Bagchi. Thereafter on 18-5-1955 the petitioners appeared before Sri Bagchi J and denied the existence of a public right over the pathway. Witnesses were examined before the learned Magistrate under Section 139A, Criminal P. C. and after hearing arguments the learned Magistrate Sri Bagchi came to the conclusion that there was no substantial evidence in support of the denial of public right produced by the petitioners with the result that the proceedings were directed to continue under Section 137 of the Code. Thereafter the petitioners made an unsuccessful attempt to have the matter referred to a Jury. That application was quite rightly rejected inasmuch as the petitioners had already shown cause, and the right to show cause or to ask for appointment of a Jury are clearly alternative rights given to a party under the Code. Thus a decision was reached by Sri Bagchi in terms of Section 139A, Criminal P. C. When the proceedings reached that stage, Sri Bagchi, it appears, was transferred, whereupon on 13-7-1955 the proceedings were withdrawn by the Subdivisional Magistrate and transferred to the file of Sri A. K. Banerjee, another learned Magistrate of the place. Before this last named Magistrate attempt was further made by the petitioners to revive the prayer for appointment of a Jury which was quite properly again rejected by Sri Banerjee. Then, it appears, evidence was produced by the parties which was taken by the learned Magistrate Sri Banerjee who in the end came to the conclusion that the conditional order issued should be made absolute and ordered accordingly. It is against this last order that the present petition is directed.