EMPEROR Vs. RAGHUNANDAN SARAN DAS

JUDGEMENT

(1.) THIS is a reference by the Additional Sessions Judge of Darbhanga forwarding the proceedings of a case under Ch. 10 (Ss. 133 and following), Criminal P.C. in which the Sessions Judge is of opinion that the proceedings of the District Magistrate of Darbhanga subsequent to 15 April 1936, which was the date of the preliminary conditional order under Section 133, are contrary to law and require revision. The procedure in cases under Ch. 10 is constantly causing difficulty to the Courts. The law is explained in Thakur Sao V/s. Abdul Aziz 1926 Pat 170. The pitfall which most frequently leads to error is the omission to observe that when an order under Section 133 has been made with reference to an obstruction in a public way and the person to whom the order has been addressed appears before the Magistrate, the Magistrate must before proceeding to the inquiry contemplated by Secs.137 and 138 question the person as to whether he denies the existence of any public right in respect of the way or place. At this stage it is clearly for the person so proceeded against to adduce evidence in support of his denial of a public right of way and the Magistrate ought to make a finding whether the existence of a public right is denied or not, and if it is denied whether there has been produced or not reliable evidence in support of the denial. If the existence of a right of way is not denied or if there is no reliable evidence in support of the denial, the Magistrate should then proceed to the inquiry under Secs.137 and 138, and in this inquiry it is for the Crown to lead evidence and the person proceeded against to answer it. The nature of these proceedings does not appear to have been fully understood in the Courts below and for this reason alone I think I should have to set aside the order passed and direct that the proceedings be resumed from the point at which they became irregular, that is to say, when the accused appeared in answer to the conditional order of 15 April 1936. The proceedings of the District Magistrate are however defective in another respect also, namely, in refusing a request of the accused for transfer of the case to another Court. The circumstances were these: When the accused, as we may call him (though the expression is not strictly accurate), appeared on 24 April, he asked the District Magistrate himself to consider the documentary evidence which he brought with him, although the District Magistrate in his order of 15 April had directed the accused to appear before the Sadar Subdivisional Officer. Later, when the District Magistrate was holding the inquiry under Secs.137 and 138 the accused in a petition dated 12 May 1936, prayed that the case might be referred and transferred to some other Court "as it is based and founded on your honour's personal observation." The District Magistrate apparently being influenced by the fact that on an earlier date the accused had asked to argue his case before the District Magistrate personally, ordered: "The case cannot be transferred."

(2.) I do not think that the request of the accused to be allowed to show his papers to the District Magistrate on 24 April can be construed as meaning that he wished the entire case to be handled by the District Magistrate himself. On its face once the correct procedure is understood it appears to be no more than a request that the preliminary scrutiny of evidence under Section 139-A should be done by the District Magistrate. This could well have been done without prejudice to the question who should conduct the inquiry under Secs.137 and 138. This petition, therefore, should not be taken to prejudice the right of the accused to move to have that later inquiry placed before another Magistrate in pursuance of the rights which an accused ordinarily has in all criminal proceedings under Section 191, Criminal P.C., when a Magistrate has taken cognizance of a case on his own knowledge or information. In the result the reference is accepted, the order set aside, and the record will be sent back for the proceedings to be resumed from the stage at which they became irregular and conducted in accordance with law.