Yashoda Nandan, J.
1. When this case came up for hearing before our brother Md. Hamid Hussain. he appears to have been of the opinion that there was a conflict in the decisions of this court with regard to the applicability of Section 192 of the Code of Criminal Procedure to proceedings following a conditional order passed under Section 133 Sub-section (1) of the Code. In order to resolve the conflict, he referred this case to a larger Bench and as a result it has come up before us.
2. The relevant facts giving rise to this Reference are that applicant Suresh Chandra by an application D/- 1st July, 1965. moved the Sub-Divisional Magistrate. Kannauj, to initiate proceedings under Section 133 of the Code against opposite-party Puttu Lal for removal of some alleged unauthorised encroachments from what was claimed to be a public pathway. The case appears to have had a chequered career and ultimately the Sub-Divisional Magistrate called for a report from the Tehsildar. who recommended that notice under Section 133 of the Code be issued to Puttu Lal. Consequent on the report of the Tehsildar on the 28th March. 1968, the learned Sub-Divisional Magistrate passed a conditional order as contemplated by Section 133 Sub-section (1) of the Code requiring the opposite-party to remove the offending encroachments within fifteen days of the receipt of the notice and if he had any objection to comply with the directions to appear before himself on the 20th April, 1968, and to move to have the order set aside On the date fixed opposite party Puttu Lal appeared before the learned Sub-Divisional Magistrate and filed objections showing cause against the conditional order. On the 9th May. 1968, the record discloses. the learned Sub-Divisional Magistrate enquired from Puttu Lal as to whether he had encroached upon the village Pathway existing on plot no. 1626 by digging a ditch therein and extending the boundaries of his plot Nos. 1615 and 1766 thus causing an unlawful obstruction in the public path. In answer to the question put to him. Puttu Lal stated that he had caused no obstruction to the public path either by digging a ditch thereon or extending the boundaries of his fields. The question was put and answer obtained by the learned Sub-Divisional Magistrate apparently in compliance with the provisions of Section 139-A of the Code On the 19th August. 1968, the learned Sub-Divisional Magistrate passed an order transferring the case to the court of the Tehsildar Magistrate. Kannaui for disposal. By that order the learned Sub-Divisional Magistrate directed the parties to appear before the Tehsildar-Magistrate on the 26th August, 1968. In pursuance of the order proceedings continued before the learned Tehsildar-Magistrate, who ultimately by his order dated 14th July, 1969. dropped the proceedings having come to the conclusion on the basis of the evidence recorded by him that it had not been established that Puttu Lal had caused obstruction to any public path.
3. Aggrieved by the order Suresh Chandra invoked the revisional jurisdiction of the Additional Sessions Judge, Farrukhabad. It was contended on behalf of the applicant that the order passed by the learned Sub-Divisional Magistrate transferring the case to the Tehsildar-Magistrate. Kannauj. was illegal and consequently the entire proceedings before the Tehsildar-Magistrate leading up to the ultimate order were illegal and invalid. The learned Sessions Judge following the decisions by Raghubar Dayal. J in Bhola v. Lachman : AIR1950All475 and by D. S. Mathur. J. in Kishori Lal v. State : AIR1960All244 ) held that the order of the learned Sub-Divisional Magistrate. Kannauj dated 19th August. 1968. transferring the case to the Tehsildar-Magistrate, Kannaui. for disposal as well as the order dated 14th July, 1969. passed by the Tehsildar-Magistrate were both illegal and deserved to be quashed. Hp consequently made a reference to this Court recommending the quashing of the two orders.
4. Before Md. Hamid Hussain, J, two further single Judge decisions of this Court were relied upon by the learned Counsel supporting the reference, One is a decision by Harish Chandra Pati Tripathi J. in Mohlad Singh v, Birbal. 1966 All W R (HC) 656 and the other is Hashmat v. Radhey Lal 1966 All W. R. 655 decided by p. P. Unival. J. In both these cases the view taken by Raghubar Dayal J. in : AIR1950All475 (supra) was approved and followed.
5. Learned counsel opposing the Reference relied upon a decision by Kailash Prasad. J. in Jai Ram Singh v. Bhuley : AIR1963All27 . Mohd Hamid Hussain. J. seems to have been of the opinion that this decision is in conflict with the view expressed by Raghubar Dayal. J. in : AIR1950All475 and the other three decisions mentioned above which followed it. Learned counsel for the opposite-party further placed reliance on the decision of a Division Bench of the Calcutta High Court in Bardeswari Prasad Battacharjee v. Rabi Nandan Saha : AIR1956Cal24 and another decision of the same Court in Mahadeb Karmakar v. Adhir Kumar Karmakar : AIR1970Cal169 .
6. The learned single Judge was inclined to take a view contrary to the one expressed by Raghubar Dayal J.in : AIR1950All475 (supra).
7. The question to be considered is as to whether the learned Sub-Divisional Magistrate having omitted to direct in the conditional order itself that the Opposite-party should appear before some other Magistrate of the first or second class to move to have the conditional order set aside or modified it was open to him at a subsequent stage to transfer the inquiry to another Magistrate.
8. In the two decisions of the Calcutta High Court which have been referred to in an earlier part of this judgment the view has been taken that in exercise of the powers contemplated by Section 192 (1) Criminal P.C. even though the conditional order does not require the party concerned to appear before another specified Magistrate it is open to the Sub-Divisional Magistrate who passes the conditional order to transfer the proceedings at any subsequent stage to any other Magistrate of the first or second class. Md. Hamid Hussain, J, was also impressed by the consideration that proceedings following a conditional order under Section 133 (1) are an 'inquiry' as defined in Section 4 (1) (k) and since not only a trial but an inquiry could also be transferred by a Sub-Divisional Magistrate under Section 192 (1), Criminal P.C. the Calcutta decisions are correct.
9. Section 4 (1) (k) of the Code defines the word 'Inquiry' as including 'every inquiry other than a trial conducted under this Code by a Magistrate or Court.' The definition is clearly wide enough to embrace proceedings under . Chapter X of the Code but it does not in our opinion necessarily lead to the conclusion that Section 192 (1) of the Code is applicable to an inquiry consequent on a conditional order under Section 133. Section 192 of the Code runs as follows:
(1) Any Chief Presidency Magistrate, District Magistrate or Subdivisional Magistrate may transfer any case, of which he has taken cognizance, for inquiry or trial, to any Magistrate subordinate to him.
(2) any District Magistrate may empower any Magistrate of the first class who has taken congnizance of any case to transfer it for inquiry or trial to any other specified Magistrate in his district who is competent under this Code to try the accused or commit him for trial; and such Magistrate may dispose of the case accordingly.' Sub-section (1) empowers the categories of Magistrates specified therein to transfer any case of which cognizance has been taken to any subordinate Magistrate for inquiry or trial. Since proceedings under Chapter X are 'inquiry' as defined in Section 4 (1) (k), if we confine our attention to Sub-section (1). superficially it does appear that a sub-Divisional Magistrate passing a conditional order directing the concerned party to appear before himself to show cause has the power to transfer the proceedings at any subsequent stage to any other Magistrate subordinate to him, Sub-section (2) of the provision on a close analysis however shows that it is not applicable to every variety of 'inquiry under the Code. It authorizes Magistrates of the first class, so empowered by the District Magistrate to transfer for enquiry or trial any case of which cognizance has been taken to any other specified Magistrate of the district provided the transferee Magistrate is competent under the Code to try the accused or commit him for` trial. The fact that Section 192 (2) authorises transfer of cases for inquiry or trial only to Magistrates competent to try the accused or commit him for trial leaves little room for doubt that only such 'inquiries' are envisaged by the provision in which some one figures as an accused person who can be committed for trial. Section 192 (2) in our opinion is limited in its application to 'inquiries' under Chapter XVIII of the Code. As far as Sub-section (1) of Section 192 is concerned, it cannot, in our view. be interpreted divorced from Sub-section (2). Both the sub-sections deal with the power to transfer cases for inquiry or trial to Magistrates other than those who have taken cognizance of them. Apart from the fact that while under Sub-section (1) Magistrates specified therein are authorized to transfer cases from themselves to other Magistrates on their own authority under Sub-section (2). Magistrates of the first class need to be empowered to do so by the District Magistrate. There is no basic difference in the nature of the powers under the two clauses of the section. Neither the j context nor the language provide any legal justification for holding that the scope of the expression 'inquiry' in Section 191 (1) is wider in amplitude than the scope of the same expression in Sub-section (2). In our judgment since there is no accused person in proceedings under Chapter X of the Code Section 192 has no application to them. Observations of Raghubar Dayal J. in : AIR1950All475 (supra) are in accord with our view regarding the construction of Section 192. With respectful deference to the learned Judges who decided : AIR1956Cal24 (supra) we are unable to concur with their views regarding the applicability of Section 192 to proceedings consequent on an order under Section 133.
10. Chapter X of the Code deals with the subject of 'public Nuisances.' The Chapter contains Sections 133 to 143. The object of the Chapter is to provide for a summary procedure for abatement of various types of public nuisances mentioned in Section 133. It is enacted in Section 133 (1) that whenever a District Magistrate or a Sub-Divisional Magistrate or a Magistrate of the first class considers that there is any unlawful obstruction or public nuisance of the nature contemplated by the provision by any person, he may pass a conditional order directing the removal of the offending obstruction or nuisance within a time to be specified and if the person concerned objects to the. performance of the order, to appear before himself or some other specified Magistrate of the first or the second class at a time and place to be fixed by the order and to move to have it set aside in the manner provided in the subsequent provisions of Chapter X. The provision makes it clear that a conditional order of the nature contemplated could be passed only by a District Magistrate. Sub-divisional Magistrate or a Magistrate of the First Class and no other Magistrate is competent to do so. In the conditional order itself the Magistrate must indicate as to whether the party concerned has to appear to show cause before him or before some other specified Magistrate of the First Class or the Second Class.
After the order has been served in the manner specified in Section 134. the person against whom the order has been made must either carry out the directions contained in it or appear in accordance with such order and either show cause against the same, or apply to the Magistrate by whom it was made to appoint a jury to try whether it is reasonable and proper as required by Section 135. Thus if the directions contained in the conditional order have been carried out the person against whom the order has to be made has nothing further to do. If he has any objections to carry out the order he has two options. If the order itself does not specify another Magistrate before whom appearance is to be made for showing cause, he has to on the specified date appear before the same Magistrate who passed the order to show cause against the same. On the other hand if the order nominates another Magistrate before whom cause has to be shown he must appear before such other Magistrate and show cause against the order. In either case he has the option of asking for the appointment of a jury to try whether the order is reasonable and proper.
If he desires the appointment of a jury even in cases where some other Magistrate has been specified before whom cause has to be shown, he must appear before the very Magistrate who passed the conditional order and apply for the appointment of a jury. The Magistrate passing the conditional order On receiving an application under Section 135 for appointment of a jury has to follow the procedure laid down in Section 138 in the appointment of the foreman and the jury. The issue as to whether the conditional order is reasonable and proper or not has to be decided by the Magistrate with the aid of the foreman and the jury in accordance with Section 139 and Section 137, Sub-sections (2) and (3). The law gives no power to the Magistrate passing the conditional order to permit the party concerned to appear before any Magistrate other than himself if he desires the appointment of a jury for decision of the reasonableness and propriety of the order. The law casts a duty on the Magistrate passing the conditional order to himself appoint the foreman and the jury and to decide with their aid the question with regard to the reasonableness and propriety of the order. This duty he cannot assign to any other Magistrate either while passing the conditional order or at any subsequent stage of the proceedings by means of an order of transfer.
According to Section 136 if the party concerned neither performs the act directed by the conditional order nor appears and shows cause or applies for the appointment of a jury as envisaged by Section 135 he will be liable to the penalty prescribed in Section 188 of the Indian Penal Code and the conditional order has to be made absolute. Section 139-A of the Code which throws a good deal of light on the question which we are called upon to answer is as follows:
139-A (1) Where an order is made under Section 133 for the purpose of preventing obstruction nuisance or danger to the public in the use of any way, river, channel or place the Magistrate shall on the appearance before him of the person against whom the order was made, question him as to whether he denies the existence of any public right, in respect of way. river channel or place, and if he does so. the Magistrate shall, before proceeding under Section 137 or Section 138. inquire into the matter.
(2) If in such inquiry the Magistrate finds that there is any reliable evidence in support of such denial he shall stay the prceedings until the matter of the existence of such right has been decided by a competent Civil Court; and, if he finds that there is no such evidence, he shall proceed as laid down in Section 137 or Section 138 as the case may require.
(3). A person who has, on being questioned by the Magistrate under Sub-section (1) failed to deny the existence of a public right of the nature therein referred to. or having made such denial, has failed to adduce reliable evidence in support thereof shall not in the subsequent proceedings be permitted to make any such denial nor shall any question in respect of the existence of any such public right be inquired into by any jury appointed under Section 138.
According to Sub-section (1) of the provision quoted above, as soon as the person concerned puts in appearance before the Magistrate who passed the conditional order or the Magistrate nominated therein as the case may be, the Magistrate has to question him as to whether he denies the existence of any public right in respect of the particular way. river channel or place. In case there is a denial of the existence of any public right in respect of the way. river, channel or place in question, the Magistrate is required to inquire into the existence or otherwise of the public right before proceeding under Sections 137 and 138. The questioning with regard to the existence or otherwise of any public right in respect of the wav, river channel or place has to be made by the particular Magistrate before whom appearance has been made and must precede proceedings under Sections 137 and 138. It is that very Magistrate who has to record the denial or acceptance of the existence of the public right. In case of a denial of the existence of a public right it is that , very Magistrate who has to conduct an inquiry. The explicit language employed in Sub-section (1) of Section 139-A does not, in our opinion contemplate a power in the Magistrate before whom appearance is made of assigning these duties by means of an order of transfer to any other Magistrate. Of course any successor Magistrate would also be entitled to put the question and to conduct the inquiry provided for in that provision of the Code.
11. An examination of the various provisions of Chapter X of the Code of Criminal Procedure discloses that the procedure dealing with removal of obstruction from public paths etc. and for abatement of public nuisance has been exhaustively dealt with by the various sections of that Chapter itself and the inquiry contemplated therein must be conducted by the same Magistrate who passes the conditional order or by the one nominated therein. We are unhesitatingly of the opinion that the general power of transfer under Section 192 is not available in proceedings under Chapter X of the Code. |
12. In : AIR1963All27 (supra) decided by Kailash Prasad J.. the material facts were that learned Magistrate passed a conditional order requiring Bhule and others to remove certain obstructions. They filed a written-statement denying the existence of any public way on the land in dispute and examined three witnesses in support of their denial. The file was then sent to the Tehsildar for inquiry under Section 139-A, Criminal Procedure Code, with the directions that the Tehsildar should inquire and make a report in consultation with the Consolidation Officer. The Tehsildar reported that the public way in question was in fact obstructed by Bhuley and others. The learned Magistrate who had sent the file to the Tehsildar was transferred in the meantime and another officer succeeded him. The successor Magistrate proceeded to inquire under Section 139-A as to whether there was any reliable evidence on behalf of Bhuley and others in support of their denial of the existence of a public right of way. After hearing the parties the learned Magistrate found that the proceedings before the Tehsildar were illegal. The learned Magistrate came to the conclusion that the evidence produced by Bhuley and others in support of their denial of the public way was reliable, He consequently ordered the proceedings to be stayed until the question of the existence of public right of way was decided by a competent Court Jairam Singh at whose instance the proceedings under Section 133 of the Code had been initiated went up in revision before the learned Sessions Judge against the order of the Magistrate. The learned Sessions Judge made a reference to this Court recommending that the order of the learned Magistrate staving the proceedings be set aside and he be directed to find if the public way determined by the consolidation authorities had been obstructed by Bhuley and others. Before this Court it was urged by the learned counsel, appearing for Jairam Singh that when the case was sent to the Tehsildar for inquiry and report under Section 139-A. Criminal P.C. and the Tehsildar reported that there was no evidence in support of the denial of the right of public way, the Magistrate had no jurisdiction to determine whether there was any reliable evidence in support of the denial. It was contended that the report of the Tehsildar that Bhuley and other's did not produce any evidence before him amounted to a conclusive finding to the effect that there was no reliable evidence in support of their denial of the public way. The contention was repelled by Kailash Prasad. J. who held that.
It is true that under Section 133 a Magistrate before whom proceedings have been initiated under Section 133, Cr. P.C. and who has made a conditional order can direct the parties to appear before some other Magistrate of the first or second class but he cannot direct the parties to appear before Magistrate for the limited purpose of enquiry under Section 139-A, If he, after making a conditional order, chooses to send the case to another Magistrate, the other Magistrate gets seized of the case until he disposes it of finally either by setting aside the conditional order or by modifying it in the manner provided in the sections following Section 133, Criminal P.C. does not contemplate transfer for a limited purpose of Section 139-A only.
The only question that Kailash Prasad J. was called upon to decide was as to whether a Magistrate passing a conditional order under Section 133, Cr P.C. has the power to send the case to another Magistrate for the limited purpose of an enquiry under Section 139-A while retaining power to pass final orders in the proceedings.
13. The question with which we are faced did not arise for consideration in : AIR1963All27 and we are unable to see any conflict in this decision and the decision of Raghubar Dayal. J. in : AIR1950All475 (supra).
14. In : AIR1950All475 Raghubar Dayal. J. on a consideration of the various provisions of Chapter X held that Sections 133 to 144 provide for a special procedure with respect to proceedings relating to public nuisances and the special procedure laid down in those sections must be strictly followed. Basing his decision on the principle that where a power is given to do a certain thing, the thing must be done in that way and not at all. the learned Judge held that the Magistrate passing the conditional order has to exercise hit power of sending the case to another first class or second class Magistrate only in the manner laid down in Section 133 of the Code, i. e. by ordering in the conditional order itself that the person concerned was to appear before the other Magistrate at a certain place and time. It was help that if the Magistrate did not exercise this power in that manner he could no1 have exercised the power of sending the case to the other Magistrate or of asking the person concerned to appear before another Magistrate in any other manner He could not. it was ruled, pass such an order at a later stage of the proceedings. We are in respectful agreement with the view expressed in : AIR1950All475 (Supra).
15. The later decisions of this Court which have been mentioned in an earlier part of the judgment are in consonance with the decision in : AIR1950All475 .
16. In the view taken by us. the reference made by the learned Sessions-Judge Farrukhabad is accepted. The order passed by the learned Sub-Divisional Magistrate. Kannauj dated 19th August, 1968, transferring the case to the Tehsildar-Magistrate. Kannauj, for disposal as well as the order dated 14th July 1969, are patently without jurisdiction Section 529 (f) is attracted to cases which are capable of being transferred under Section 192, Criminal P.C. but the Magistrate passing the order of transfer has not been empowered to dc so. It cannot apply to a case to which Section 192, Cr. P.C. is not applicable at all. In the view taken by us to proceedings under Chapter X of the Code Section 192. Cr. P.C. does not apply and hence Section 529 (f) will not operate to save the order of transfer passed by the learned Sub-Divisional Magistrate. Kannauj. For the application of Section 537, Cr. P.C. it is imperative that the order sought to be saved must have been passed by a Court of competent jurisdiction. If the ultimate order passed in proceedings under Section 133. Cri. P.C. has not been passed either by the Magistrate passing the conditional order or the Magistrate specified therein but by any other Magistrate it has not been passed by a Court of competent jurisdiction In this view of the matter neither Section 529 (f) nor Section 537 of the Code can operate to save the orders impugned Both the orders are consequently quashed and we order that the case will go back to the learned Sub-Divisional Magistrate Kannauj. for being decided in accordance with law. The record of the case will be sent down to the learned Sub-Divisional Magistrate for disposal of the case at an early date.