DIGAMBER RAMSINGH Vs. EMPEROR

JUDGEMENT

(1.) This is an application directed against an order of the Subdivisional Officer of Khurda making absolute an order under Section 133, Criminal P.C., on the finding of the jury appointed under Section 138 of the Code. An application to the Sessions Judge for a reference to this Court was refused. The application for revision to this Court was filed before the learned Registrar of the Cuttack Circuit Court who has ordered it to be placed before this Court at Patna. The rule was issued by Fazl Ali, J., and it has come up for hearing before me. Nobody appears to show cause. The learned District Magistrate has referred to the explanation submitted by the Subdivisional Officer who in his turn refers to the explanation submitted by him to the learned Sessions Judge which is dated 23 June 1933 and I have carefully considered it.

(2.) It appears that the petitioner has added a room to his house. It is alleged that this addition obstructs a public path. There was a report by the Sarbarakar on which a proceeding under Section 133, Criminal P.C., was started. Later on there was a report by the police on which a second proceeding under Section 144 of the Code was started. There was an inquiry by a Tehsildar and on the strength of his report the order under Section 144 was made absolute against the petitioner and he was directed to remove the obstruction. On revision the District Magistrate set aside the order under Section 144 and directed the Sub-divisional Magistrate to proceed with the case started under Section 133, Criminal P.C.

(3.) On a date fixed after the order of the District Magistrate, namely, on 11 May 1933, the petitioner appeared and applied for the appointment of a jury. The jury was forthwith appointed, and it was on their decision that the order complained of has been passed. The order is attacked on two grounds, first that before the appointment of the jury there ought to have been a preliminary inquiry contemplated by Section 139-A, Criminal P.C., and, secondly, that the appointment of the jury was irregular. In my opinion the proceeding of the learned Magistrate must be set aside at least on the first of these two grounds. Section 139-A is a newly added section under the amendments made in the year 1923. The object is that before the criminal Court passed an order which is irrevocable there must be grounds to believe that the objection against the passing of the order has no substance. The procedure prescribed under Ch. 10 of the Code is shortly this: On receipt of a report or information a Magistrate competent to proceed under this Chapter is to issue a conditional notice for doing certain things, etc.