CHANDERDIP MAHTON Vs. EMPEROR

JUDGEMENT

(1.) This is an application in revision against an order made under Section 137, Crjminal P. C, by a Second Class Magistrate" making absolute a conditional order passed under Section 133 of the Code. On an application filed by the opposite party on 30 September 1942 before the Sub-divisional Officer of Chapra, he passed a conditional order under Section 133 on 30 October 1942 and issued a notice calling upon the petitioners to show cause why they should not remove their bamboo clumps from, plot No. 78 said to be a village rasta in village Fursatpur. The petitioners did not appear and show cause on the date fixed and the Sub-divisional Officer made the order absolute. Subsequently, the petitioners appeared and showed cause, and thereupon the Sub-divisional Officer by his order dated 17 February 1942 discharged his previous order under Section 133, stating that it was "not a case of very recent obstruction and no action was necessary." This later order, however, was set aside by this Court in revision and the case was remanded to the Sub-divisional Officer. After remand the Sub- divisional Officer transferred the case for disposal to a Sub-deputy Magistrate with second class power. The Sub-deputy Magistrate, after taking Cvidence and hearing the, parties made the conditional order absolute by his order dated 14 March 1944 whereby the petitioners were directed to remove the bamboo clumps from the public rasta within one month. Against this order the present application is directed. This case at first came up for hearing before Sinha J. who referred it to a Division Bench. Two points have been urged by Mr. Jaleshwar Prasad on behalf of the petitioners. The first is that the Sub-deputy Magistrate had no jurisdiction to pass the final order complained of. The argument is twofold; in the first place, it is said that the Sub-divisional Officer, after having issued notice under Section 133 calling upon the petitioners to appear before him and show cause, had no jurisdiction at a later stage to tranifer the case for disposal to some other Magistrate. In the second place, it is said that the Sub-deputy Magistrate with second class power had no jurisdiction to hear any case under Section 138. The first part of this argument is sought to be based on the provisions of Secs.133 and 137. The relevant provision of Section 188 is as follows: Such Magistrate may make a conditional order requiring the person ausing such obstruction... to appear before himself or some other M- agistrate of the first or second class, at a time and place to be fixed by the order, and move to have the order set aside or modified in the manner hereinafter provided.

(2.) Section 137 is in these words: (1) If he appears and shows cause against the order, the Magistrate shall take evidence in the matter as in a summons-case. (2) If the Magistrate is satisfied that the order is not reasonale and proper, no further proceedings shall be taken in the case. (3) If the Magistrate is not so satisfied, the order shall be made absolute.

(3.) The wording of Section 137 suggests that the evidence should be taken and the final order should be passed by the Magistrate before whom the person against whom the conditional order under Section 133 is made is required by the order to appear and show cause. Where, therefore, a Sub-divisional Magistrate makes a conditional order "requiring the person against whom it is made to appear before himself, he should, strictly speaking, dispose of the case himself. If, after the person appears before him, the Sub-divisional Magistrate transfers the case for disposal to another Magistrate of the first or second class, he will not be acting in strict accordance with the provisions of Secs.133 and 137. But if the Sub- divisional Magistrate does so transfer the case, can it be said that he acts without jurisdiction so that all the subsequent proceedings will be rendered void ?