JAGDISH SINGH Vs. BAIJNATH SINGH

JUDGEMENT

(1.) This is a reference under Section 438, Criminal P.C., made by the Additional District Magistrate of Patna recommending that the order dated 2 April, 1942 passed by the second officer, Dinapore, under Section 139, Criminal P.C., calling upon the second party to remove an encroachment be set aside. On 21 August 1941 Jagdish Prasad Singh and three others called the first party filed an application before the Sub-divisional Magistrate, Dinapore, alleging that Baijnath Singh and eight others called the second party had encroached on plot 1828 which was recorded in survey as "gair mazrua am rasta" and praying that the second party might be ordered to remove the said encroachment as it constituted a public nuisance. The Sub-divisional Magistrate by his order dated 12 September 1941 issued notice under Section 133, Criminal P.C., against the second party calling upon them to remove the encroachment from the public path or to shew cause on 10 October 1941. On 10 October 1941 cause was shown by the second party who claimed the said land as their private path. The Sub-divisional Magistrate fixed 5 November 1941 for taking evidence on this point. After taking evidence the Magistrate found that it was a fit ease for action under Section 133, Criminal P.C. On 3 January 1941 the Sub-divisional Magistrate passed the following order: Draw up proceedings under Section 133, Criminal P.C., against the second party to show cause with evidence before the Second Officer on 24 January 1942 why they should not remove the encroachments.

(2.) On 24 January 1942 the second party appeared and took time. On 2nd February 1942, they applied for the appointment of a jury under Section 135, Criminal P.C. A jury was accordingly appointed. The jury submitted their report. The second officer, accepting that report, made the original order absolute against the second party and called upon them to remove the encroachment by 4 May 1942. Against this order the second party moved the Additional District Magistrate to refer the matter to this Court. The Additional District Magistrate, being of opinion that the second officer had no jurisdiction to hear the case or appoint a jury, has referred the matter to this Court. Mr. Ganesh Sharma who appears in support of the reference argued, in the first place, that the second officer had no power to hear the case at all. It is said that the Sub-divisional Magistrate, having held the enquiry under Section 139A, should have himself disposed of the case. I am unable to accept this contention. Section 139A, so far as it is relevant to our present purpose, runs as follows: (1) Where an order is made under Section 133 for the purpose of preventing obstruction, nuisance or danger to the public in the use of any way, river, channel or place, the Magistrate shall, on the appearance before him of the person against whom the order was made, question him as to whether he denies the existence of any public right in respect of the way, river, channel or place, and if he does so, the Magistrate shall, before proceeding under Section 137 or Section 138 inquire into the matter. (2) 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; and, if he finds that there is no such evidence, he shall proceed as laid down in Section 137 or Section 138, as the case may require.

(3.) It is thus clear that the inquiry under this section precedes the stage of inquiry under Section 137 or Section 138. Section 137(1) provides: If he appears and shows cause against the order, the Magistrate shall lake evidence in the matter as in a summons case.