HARNAND Vs. STATE

JUDGEMENT

(1.) THIS is a reference by the learned Sessions Judge, Jhunjhunu and arises under the following circumstances:

(2.) THE Police Station, Chirawa filed a report under Section 133, Criminal P. C. , against Hamand and eleven others with the allegation that they unlawfully obstructed the public way which led from, the town of Ojhto to Chirawa by putting up a hedge and that the said obstruction amounted to a public nuisance. The report was made to the Magistrate First Class at Chirawa who issued notices to harnand and others. They appeared on 7-3-1956 and raised two objections. One objection was that the persons proceeded against were Panchas and could not be proceeded against without the sanction of the proper authority. The second objection was that the place where the obstruction was alleged to have been made was not a public way. The Magistrate over-ruled the first objection and in respect of second fixed 7-41954 for enquiry as required by Section 139 (A) of the Criminal Procedure Code. This order was passed on 7-3-1956.

(3.) HARNAND and others filed a revision before the learned Sessions Judge and it was urged firstly that the Magistrate could not take action without proper sanction and secondly that the First Class Magistrate at Chirawa had no jurisdiction to take action under Section 133, Criminal P. C. , or to make an enquiry under Section 139 (A) of the Criminal Procedure Code. The learned Sessions Judge did not like to express any opinion on the first question because he thought that the Magistrate had no jurisdiction according to an unreported decision of this Court in Single Bench -- Kalu v. Chandgi, Criminal ref. No. 46 of 1954, D/- 19-8-1954 (A ). He accordingly made this reference that the case be transferred to the court of sub-Divisional Officer having jurisdiction. This reference came be-fore another single Judge of this Court and he doubted the correctness of the decision in Kalu's case (A), and has referred the case to a Division Bench.