CHAUDHARI MANDAL Vs. CHHEDI MANDAL

JUDGEMENT

(1.) The only point canvassed in this application is as to whether an Executive Magistrate not specially empowered by the State Government to act under Sec. 133 of the Code of the Code of Criminal Procedure (for short 'the Code') can initiate a proceeding under Sec. 133 of the Code.

(2.) The short facts, which gave rise to this application, are that the opposite party filed a petition before the Sarpanch, Arajpur Gram Cutcherry, for starting a proceeding under Sec. 133 of the Code against the petitioners. The Sarpanch, after enquiry, sent the said petition to the court of the Sub -divisional Officer Madhepura. It has been averred in this application that on 8 -7 -1981, Shri M.L. Das, Executive Magistrate, Madhepura, started a proceeding under Sec. 133 of the Code against the petitioners and ordered issuance of notices to the petitioners to file their show cause. In pursuance of the said notice, the petitioners appeared and filed their show cause stating therein that the initiation of the proceeding by Shri M.L. Das, Executive Magistrate, was vitiated in law in view of the fact that Shri Das, was neither the Sub -divisional Magistrate nor was he specially empowered in this behalf by the State Government to act under Sec. 133 of the Code. The learned Sub -divisional Magistrate, after hearing the parties, ordered enquiry under Sec. 138 of the Code vide his order, dated 7 -9 -1981.

(3.) Learned Counsel, appearing on behalf of the petitioners, has submitted that the initiation of the proceeding under Sec. 133 of the Code by order dated 8 -7 -1981 passed by Shri M.L. Das, including the subsequent order passed by the learned Sub -divisional Magistrate in the said proceeding is illegal and vitiated in law, and, as such, it is fit to be quashed.