SITARAM LOHAR Vs. PASUPAT LOHAR

JUDGEMENT

(1.) This reference under Section 438 of the Code of Criminal Procedure has been made by the Additional Sessions Judge, Arrah, for setting aside the order dated the 17th August, 1964, with respect to the appointment of a jury, which has been passed in a proceeding under Section 133 of the Code, which was then pending as between the present parties and also the final order as passed in that case. It transpires that the house of Sitaram Lohar, at whose instance the present reference has been made, and that of opposite party Pasupat Lohar are side by side with a narrow strip of land separating the two. On the 25th February, 1963, Sitaram Lohar filed a petition before the Subdivisional Magistrate for action under Section 133 of the Code of Criminal Procedure as against opposite party Pasupat Lohar on the allegation that this strip of land, which, according to him, was 5 to 6 cubits wide, was a public lane and in reconstructing his house on the other side of the lane, Pasupat had encroached upon this land to the extent of 2 cubits. After an inquiry by the police with regard to the allegation made in this petition, the learned Subdivisional Magistrate passed an order on the 25th March, 1963, drawing up a proceeding under Section 133 of the Code as against Pasupat Lohar; and by this order he was directed either to remove the construction by which the lane was alleged to have been encroached upon by the 15th April, 1963, or to show cause by the same date if he objected to the same. Pasupat Lohar subsequently appeared before the Subdivisional Magistrate and filed a show cause petition on the 15th June, 1963, to the effect that he had not made any encroachment whatsoever on the public lane. After several adjournments the case was transferred for disposal according to law to Mr. L.K.P. Srivastava, Magistrate, 2nd class, as per order of the Subdivisional Magistrate, dated the 17th December, 1963. Subsequently, on the 24th July, 1964, this Magistrate came to a finding that the opposite party had failed to deny the existence of public right in the lane in question; and hence, the proceeding would continue under Section 133, Code of Criminal Procedure, and he further directed by the same order that the opposite party may apply for a jury. Subsequently, on the 17th June, 1964, an order was passed appointing some jurors and they were directed to give their finding by the 25th September, 1964. The jury subsequently submitted a report to the effect that the existing rasta was sufficient and would cause no obstruction to the parties or the public. Thereafter, a protest petition filed by Sitaram was rejected and the finding of the jury was upheld. The present reference has been made by the Additional Sessions Judge as against this order on the ground that the Magistrate to whom the case had been transferred had no jurisdiction to appoint a jury, as such appointment could be made only by the Magistrate, who passed the conditional order under Section 133 of the Code of Criminal Procedure, that is, the Subdivisional Magistrate in the present case.

(2.) As held by a Division Bench of this Court in Jagdish Singh v. Baijnath Singh A.I.R. 1943 Pat. 115 an application for appointment of a jury and an order for such appointment must be made to and by the Magistrate by whom the conditional order under Section 133 of the Code was passed. In the present case, no application for appointment of a jury was made either before the Subdivisional Magistrate, who passed the conditional order under Section 133, or, the Magistrate to whom the case was subsequently transferred, but the Magistrate himself appears to have passed an order on the 24th July, 1964, to the effect that the opposite party might apply for appointment of a jury; and thereafter on the 17th August, 1964, some jurors were nominated by the opposite party and thereon the appointment of jurors was made. Even if this, in substance, amounted to an application by the opposite party for appointment of a jury, it is evident, in view of the decision of this Court referred to above, that the aforesaid Magistrate was not competent to pass any such order for appointment of a jury as an application for appointment of a jury is to be made before the Magistrate, who passed the conditional order and such appointment also can be made by that Magistrate and not by a transferee Magistrate. It was contended on behalf of the opposite party that the aforesaid decision of this Court is distinguishable, as in the aforesaid case the application for appointment of a jury was made to the Magistrate in whose court the opposite party had been directed to appear under the terms of the conditional order as passed by the Subdivisional Magistrate, whereas in the present case the Magistrate in question is a Magistrate to whom the case was subsequently transferred by the Subdivisional Magistrate a long time after the opposite party appeared and showed cause. This distinction, however, is hardly of any importance for the question is whether a transferee Magistrate or the Magistrate who passed the conditional order can pass an order for appointment of a jury; and no room for doubt has been left in the matter in view of the above decision, which appears to be based on the clear provisions of Section 134(b) as well as Section 138, Code of Criminal Procedure. It follows, therefore, that the transferee Magistrate had no jurisdiction to pass any order for appointment of a jury and as such his order relating to the appointment of a jury and all subsequent proceedings based upon that order, have got to be quashed on this ground.

(3.) Apart from this, I may also observe that, in my opinion, no order for appointment of a jury could be made in this case in view of the facts and circumstances of the case. As would appear from the provisions of Sections 133 and 135 of the Code of Criminal Procedure, a party against whom a conditional order under Section 133 of the Code has been passed, may do any of three things. Firstly, he may comply with the direction as given in the order within the time and in the manner as specified therein. It is evident that if he does so, there will be an end of the matter. On the other hand, if he objects to comply with the order, he may (i) either show cause against the same or (ii) apply to the Magistrate by whom the conditional order was passed to appoint a jury to try whether the same is reasonable or proper. The procedure to be followed thereafter is laid down in Sections 137 and 138 of the Code; and, as will appear from the terms of these Section s, the provisions of Section 137 will apply in a case when the party appears and shows cause against the order, while Section 138 will be applicable where an application has been made under Section 135 of the Code for appointment of a jury. In the former case, the Magistrate has to decide the matter after taking evidence in the matter as in a summons case as provided in Sub-section (1) of Section 137, and if he is satisfied that the order is not reasonable and proper, no further proceedings shall be taken in the case as laid down in Sub-section (2) and if he is not so satisfied, the order has to be made absolute, as provided in Sub-section (3). On the other hand, in a case where an application for appointment of a jury in accordance with Section 135 has been filed, then the appropriate Section applicable will be Sub-section (1) of Section 138, which requires that the Magistrate shall forthwith appoint jury in the manner laid down in that sub-section. Under Section 139, if the jury finds that the order of the Magistrate is reasonable and proper as originally made, or subject to a modification which the Magistrate accepts, the Magistrate shall make the order absolute, subject to such modification, if any, and in other cases no further proceedings have to be taken. Under Section 139-A of the Code, however, certain preliminaries have to be observed before proceeding under Section 137 or Section 138 in those cases in which an order under Section 133 is passed for the purpose of preventing obstruction, nuisance or danger to the public in the use of any way, river, channel or place. In such cases, before proceeding under Section 137 or Section 138, a Magistrate is required to question the party as to whether he denies the existence of any public right in respect of the way, river, etc. and if he does so, the Magistrate has to make an inquiry into the matter and if in such inquiry the Magistrate finds that there is any reliable evidence in support of such denial, he shall stay the proceedings until the matter of the existence of such right has been decided by a competent Civil court. Sub-section (2) of Section 139-A further lays down that in case the Magistrate finds that there is no such evidence, he shall then proceed as laid down in Section 137 or Section 138, as the case may be. It is apparent from the above provisions that in all cases under Section 133 of the Code the procedure as laid down in Section 137 is to be followed in a case where the party concerned appears and shows cause against the order, and the procedure laid down in Sections 138 and 139 is to be followed if a party instead of showing cause applies before the Magistrate for appointment of a jury. In those cases however, in which the purpose of the order is to prevent obstruction etc. to the public in the use of way etc. the inquiry in accordance with Section 137 or Sections 138 and 139 has to be preceded by a further inquiry as laid down in Sub-section (1) of Section 139-A and unless the further proceedings are stayed for decision about the existence of the public right by a competent civil court in accordance with Sub-section (2) of Section 139-A, the Magistrate who finds that there is no reliable evidence in support of the denial of the right to the public, has to proceed thereafter under Section 137 or Section 138, as the case may be. The Magistrate has to proceed under Section 138 after following the procedure laid down in Sub-section (1) of Section 139-A only in case an application for appointment of a jury in accordance with Section 135 has been filed, and as already pointed out above such application has got to be filed by a party when he appears before the Magistrate by whom the conditional order was passed in accordance with Which the notice under Section 133 of the Code had been issued to him. It would appear, on a consideration of all these Section s, that if there is no application for appointment of a jury by the opposite party in a proceeding under Section 133 of the Code of Criminal Procedure when he appears in pursuance of a notice issued under Section 133 and on the contrary instead of applying for appointment of a jury he merely files a show cause petition against the order, there can be no question of any such appointment at any subsequent stage of the proceeding and the Magistrate should in such a case proceed in accordance with the procedure laid down in Section 137 and he cannot abrogate the powers that have been given to him for deciding the matter by delegating the same to a jury, I may, however, mention that my attention was drawn to a decision of a single judge of this Court in Hari Lal Singh v. Deo Narain Singh A.I.R. 1941 Pat. 370. This is a very short judgment in which a contrary view appears to have been taken on the basis of the decision of the Calcutta High Court in Shamji Tricumdas v. Ram Moye 56 C.L.J. 249 S.C. : A.I.R. 1933 Cal. 318. For the reasons already mentioned, I find myself unable to agree with this view. In the present case, it is, however, unnecessary to make a reference to a Division Bench for determination of this question as the present reference has got to be accepted on the other ground already discussed above, viz., on the ground that the transferee Magistrate was not competent to appoint a jury as such appointment can be made only by the Magistrate who passed the conditional order.