CHANCHALA SINGH Vs. STATE

JUDGEMENT

(1.) THE learned Additional District Magistrate, Keonjhar has made this reference to set aside the order dated 18 -1 -1971 passed by a Magistrate, First Class, Keonjhar in a proceeding under Section 13(1) Code of Criminal Procedure. The reference is mainly on the ground that the Learned Magistrate did not question the Petitioner who was the opposite party in the Court below as to whether he denied the existence of any public right in respect of the way. The reference is resisted by the learned Additional Government Advocate appearing for the State. He contends that the omission to put such a question does not vitiate the proceeding. In the present case the Petitioner had filed his written statement denying the existence of such right of way. In the circumstances there was no prejudice by non -asking of the question by the learned Magistrate and even if there was any irregularity it is condonable one and Section 537, Code of Criminal Procedure fully applied to the facts of the case. In support of his proposition he placed reliance upon the following decisions:

(2.) HE fairly beings to my notice two decisions which go to hold that omission to put such a question at the stage indicated in Sub -section (1) of Section 139 -A, Code of Criminal Procedure vitiates the proceeding. Those decisions are Emperor v. Raghunanda, A.I.R. 1936 Pat. 689, and Akulananda v. State, 20 C.L.T. 473. In the Orissa decision Narasimham, J. as he then was, omitted to take into account the provisions of Section 537, Code of Criminal Procedure and he also did not consider the series of decisions of other Courts. The same learned judge in Panchu Satrujit and 9 Ors. v. The State and 7 Ors., 24 C.L.T. 473, while dealing with the effect of such an omission took a view very ''different from his earlier decision and which is in line with the decisions of the different High Courts. In such, circumstances, I do not find any necessity to make a reference to a larger Bench to resolve the dispute. In fact the subsequent decision of Chief Justice Narasimham is in accord with the consensus of judicial opinion on the question and I prefer to follow it. The net result, therefore, would be that the reference is incompetent and the point which was raised by the learned Additional District Magistrate merits no consideration. I would accordingly discharge this reference.