BHOORA Vs. TARA SINGH

JUDGEMENT

(1.) This is a reference under Section 438 of the Criminal P. C. by the learned Additional Sessions Judge of Meerut, asking this Court to set aside the order dated the 15 of July 1926 passed by a Magistrate of the first class in proceedings under Section 133 of the Criminal P. C. and to direct the learned Magistrate to proceed according to the provisions of Section 137 of the Criminal P. C.. The facts that have led to this reference are shortly these. An application was filed by two persons Tara Singh and Balwant Singh under Section 133 of the Criminal P. C.. Notices were issued to the opposite parties who were the applicants before the learned Sessions Judge. The opposite parties appeared and denied the allegation of the applicants that any encroachment had been made by them on a public way. In short, they showed cause against the order drawn up by the learned Magistrate in accordance with the provisions of Section 133 of the Code.

(2.) Nothing further appears to have been done in the case until the 7 July 1926, on which day the parties stated that they would be ready to abide by the decision of the Court after the Court had inspected the locality. The learned Magistrate then inspected the locality and on the 15 July made his order absolute. Section 137 (1) provides that if cause is shown against the order under Section 133 "the Magistrate shall take evidence in the matter as in a summons case." The provisions of Section 137 are imperative and as in this case the learned Magistrate has not followed the procedure prescribed by that section, his order is bad in law. When the opposite party appeared before him and showed cause and when they alleged that what was claimed as a public pathway was not so, the learned Magistrate should have recorded evidence on the matter of the complaint as in a summons case. He was not justified in ignoring the clear provisions of Section 137 of the Code and in consenting to act, so to say, as an arbitrator and to decide the matter simply after a local inspection. Consent of the parties or waiver did not vest him with a jurisdiction to proceed in the manner that he did. This was the view taken in the case of Chandra Mondal V/s. Ram Mondal [1917] 21 C. W. N. 936.

(3.) It has been argued by Dr. Katju who has appeared to oppose this reference, that the irregularity, if any, committed by the learned Magistrate is cured by Section 537 of the Criminal P. C. and that I ought not to interfere with the learned Magistrate's order unless I am satisfied that the irregularity has occasioned a failure of justice. It is to he noted that provisions of Section 537 of the, Code are applicable merely to errors of procedure arising out of mere inadvertence, and not to substantive errors of law. Section 537 has no application to cases where there has been a disregard of the mandatory provisions of the Code.