DWARKA SINGH Vs. LAL BIHARI SINGH

JUDGEMENT

(1.) This is an application in revision against the order of the learned Magistrate in a proceeding under Section 133 of the Code of Criminal Procedure, by which he has directed the second party, namely, the petitioners before me, to remove an obstruction on a public lane.

(2.) The only point taken before me is that, if the learned Magistrate had made an inquiry under Section 139-A of the Code and if he found that the proceeding should continue, as there was no substance in the denial, the learned Magistrate should have given the petitioners a chance to elect either to have the matter heard by a jury or to show cause. The learned Magistrate did not do that; that is to say, he did not give to the petitioners a chance to elect. It appears from the judgment of the learned Additional Sessions Judge, who dismissed the application before him, that the petitioners had made a prayer for the matter being heard with a jury. I would quote a portion of his judgment.

(3.) Under Section 133 of the Code of Criminal Procedure, the Magistrate passes a conditional order. Thereafter, the order shall be served on the person against whom it has been made and then it is the duty of the Court to proceed to inquire under Section 139-A of the Code. When that is done and if the Magistrate is satisfied the proceedings should continue then it is the duty of the Magistrate to give a chance to the person against whom the conditional order has been passed to elect whether he would show cause against the allegations in the complaint or he would like the Magistrate to appoint a jury to try the matter. Unfortunately, Section 139-A is wrongly placed. It should have come immediately after Section 134 of the Code of Criminal Procedure. This is obvious from Section 139-A, Sub-section (3). It says: