RAHIMADDI JAMADAR Vs. SHER ALI

JUDGEMENT

(1.) This is a Reference by the learned Additional District Magistrate of Bakarganj recommending that the order made by the learned Sub-Divisional Officer of Patukali should be vacated.

(2.) It appears that there was a proceeding under Section 133 of the Code of Criminal Procedure with regard to a certain bundh upon the Kashinath Khal. An application for its removal was made by the first party to those proceedings and objections were raised by the second party. A conditional order was drawn up by the Magistrate and a jury was appointed and they made certain suggestions which the Magistrate accepted with regard to the form of the order, passing an order in this form on the 12 of October, 1923: " The conditional order of removing the bundh is therefore made absolute with this modification that the bundh be reconstructed from Agrahayan of each year and removed again at the end of Chaitra at the cost of both parties equally in future."

(3.) A Reference questioning the legality of this order was submitted to this Court and the learned Judges disposed of it in these terms: " As the Additional Magistrate points out, this is not an order which could be made under Section 133 and we accordingly accept the Reference but we direct that the matter should go back to the Sub-Divisional Officer for his consideration and we point out to him that it will be open to him under Section 133 to make an order for the removal of the offending bundh during certain months in the year." When the record reached the Sub-Divisional Officer he drew up fresh proceedings; but without empanelling a fresh jury, ho made the following order: "The majority of the jurors found the conditional order reasonable and proper with the modification that the bundh be removed for six months of the year from Baisakh to Aswin both inclusive. I accept the modification and with this modification make the order absolute. Issue notice on the second party to remove the bundh on the Kashinath Khal from the first of Baisakh or within a week of the service of the notice whichever is later informing them that in the case of disobedience they will be liable to the penalty provided by Section 188, Indian Penal Code."