BUTTAN MODI Vs. MANICHANDRA SINGH

JUDGEMENT

(1.) By an order dated the 8th February, 1965, the District Magistrate of Bhagalpur has allowed an appeal against an order of the Subdivisional Magistrate of Bhagalpur dated the 6th July, 1964; has set aside that order and has directed a complaint to be filed against the petitioners for their prosecution under Section 188 of the Penal Code. This application is directed against that order.

(2.) Mr. Maqbool Ahmad, who has appeared on behalf of the petitioners, has argued that the District Magistrate could not entertain an appeal against the Subdivisional Magistrate's order and, therefore, his entire order is illegal. It is necessary to consider this point.

(3.) I may now give the important facts of the case On the 4th November, 1963, a proceeding under Section 144 of the Code of Criminal Procedure was drawn up. prohibiting the parties from going over plot No. 154 of khata No. 65 of village Bhuria. The order was served upon the parties On the 21st November, 1963, the first party filed a petition before the Subdivisional Magistrate. Their prayer in that petition was to take action under Section 188 of the Penal Code against the petitioners on the ground that they had constructed a wall on the disputed land, after service of the order under Section 144 upon them. The Subdivisional Magistrate sent the matter for inquiry to a Magistrate named Mr. B. B. Chand. The Inquiring Officer submitted a report dated the 12th January, 1964, saving that a prima facie case for prosecution of the petitioners under Section 188 of the Penal Code had been made out. The petitioners filed a show cause petition in which their case mainly was that the wall in question stood upon the land from before the date on which the order was served upon them. On the 8th July, 1964, the Sub-divisional Magistrate accepted the show cause of the petitioners and discharged them. In other words, he refused to file a complaint against them. The first party then filed an appeal before the District Magistrate, who, as I have already mentioned, allowed the appeal.