K.L. Bapna, J.
1. This is a reference by the learned Additional Sessions Judge, Baran, dated 3-2-1956, and arises in the following circumstances:
On 20-7-1955, an application for taking proceedings under Section 133 Cr. P. C. signed by several residents of Shahabad ward, Baran, was presented in the Court of the Sub-Divisional Magistrate, Baran, alleging that the working of the flour mill of Ram Charan was making considerable noise and the vibrations were damaging to the neighbouring buildings, & that its working caused physical discomfort, while the smoke of the engine affected the health of the public. The Sub-Divisional Magistrate sent the application to the Police Station, Baran, for report. The police supported the applicants, whereupon the Sub-Divisional Magistrate made a conditional order under Section 133 Cr. P. C. on 22nd July, 1955, directing Ramcharan to remove the flour mill or if he objected so to do, to appear before him on 16th August, 1955, to show cause against the order.
On 16th August, 1955, Ramcharan appeared, and wanted time which was granted to him till 30th August, 1955. On that day the Sub-Divisional Magistrate transferred the case to the Court of Magistrate. First Class; Baran. The learned Magistrate, after recording evidence, made the order of the S. D. O. dated 22-7-1954, absolute. He also recorded an order under Section 140 directing Ram Charan to remove the flour mill within ten days, and informed him that in case of disobedience he will be liable to penalty under Section 188 of the Indian Penal Code.
This order was passed on 28-11-1955. Ramcharan filed a revision, and the learned Additional Sessions Judge has made a reference that the order of transfer of the case by the S. D. O. on 30-8-1955, to the Magistrate, First Class, was illegal, and the subsequent proceedings should be quashed as being without jurisdiction.
2. The reference came before a learned Single Judge of this Court, and he has referred the case to a Division Bench in view of the divergent views of the High Courts on this question. As mentioned in the reference, the view taken by the Allahabad and Lahore High Courts is in support of the reference, while the view of the Calcutta and Patna High Courts was stated to be that the S. D. M. had jurisdiction to transfer the case at any stage of the proceedings, and in any case it was a mere irregularity which could be cured under Section 529 of the Code of Criminal Procedure.
3. We have heard Mr. Tyagi for Ramcharan and Mr. Chhabra, Dy. Government Advocate, for the State. In our opinion the view taken by the Allahabad High Court in Bhola v. Lachman, AIR 1950 All 475 (A) appears to be sound for the reasons which follow. Section 192 Cr. P. C., which is relied upon in support of the view that the Magistrate can transfer the case at any stage, authorises a District Magistrate and a Sub-Divisional Magistrate to transfer any case, of which he has taken cognizance, for inquiry or trial, to any Magistrate subordinate to him. Sub-section (2) of that section further authorises the District Magistrate to empower any Magistrate of the first class who has taken cognizance of any case to transfer it for inquiry or trial to any other specified Magistrate in his district who is competent under the Code of Criminal Procedure to try the accused or commit him for trial; and such Magistrate may dispose of the case accordingly.
It may be noted that a First Class Magistrate can only exercise the power if empowered by the District Magistrate, and further the said Magistrate can only exercise the power if empowered by the other Magistrate of the First, Second or Third Class, who is competent under the Code to try the accused or to commit him for trial.
4. Section 133 on the other hand empowers
'a District Magistrate, a Sub-Divisional Magistrate, and a Magistrate of the First Class to pass a conditional order to remove a nuisance (which is the case before us), or if the person objects to comply with it, to appear before himself or some other Magistrate 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'.
The distinction to be noted is that the First Class Magistrate does not require to be empowered by the District Magistrate in order to direct the person alleged to be responsible for the nuisance to appear before a First or Second Class Magistrate. Under Section 192, the First Class Magistrate, as stated earlier, can transfer the case to any Magistrate competent to try the accused or commit him for trial. Here the appearance of the person can only be directed before a First or Second Class Magistrate.
The competency under Section 192 may be with respect to his powers or with respect to the area for which he may be empowered to act. That restriction does not appear in Section 133. If Section 192 were to govern a case under Section 133 these special distinctions could not have found a place in that section. Section 133, therefore, stands by itself independently of Section 192 of the Code. If Section 192 were to prevail, these special provisions referred to above would become surplusage; but the intention of the Legislature does not appear to be so. The cardinal rule of interpretation is that every section of the Code is to be given a proper interpretation.
5. Again, when a transfer is made under Section 192, the court transferring the case does not remain seised of the case, but in respect of cases under Section 133 the matter is different. After the notice is issued by the District Magistrate, Sub-Divisional Magistrate, or Magistrate of the First Class under Section 133, the person to whom the notice is issued has three coursesopen to him, as laid down by Section 135:
1. He can comply with the order and finish with the matter; or
2. He can appear before the Magistrate before whom he is directed to appear and show cause against the order or
3. He may apply to the Magistrate who issuedthe order to appoint a jury to try whether the order was reasonable or proper.
It is clear that the person proceeded against can still approach the Magistrate who issued the conditional order and request to appoint a jury, although he has been directed to appear before some other Magistrate. Section 136 refers to the consequencesof the failure of the person proceeded against to comply with the order, or to show cause before the Magistrate before whom he is to appear, or to apply for the appointment of jury.
Here again the direction in Section 136 that the order shall be made absolute in these circumstances can only refer to the Magistrate who issued the order, because the Magistrate before whom he is directed to appear only comes in for one of the three purposes. This is obvious, because the Magistrate before whom a person is directed to appear can only take action when such person appears and shows cause against the order.
If he does not appear before such Magistrate, the latter can only send a report to the District Magistrate, Sub-Divisional Magistrate or Magistrate ofthe First Class, (who issued the order) that the person has not turned up, and it will be for the District Magistrate, Sub-Divisional Magistrate, or Magistrate of the First Class to see whether any application for jury has been made or whether theorder has been complied with, and in case of failure to do either, the order is to be made absolute as referred to in Section 136 of the Code. Section 138 relates to the appointment of the jury. This can only be done by the Magistrate who issues the conditional order. Section 139 is also for action by the Magistrate to issue the order. These special provisions, therefore make it clear that the District Magistrate, the Sub-Divisional Magistrate or Magistrate of the First Class can only direct appearance of the person proceeded against before some other Magistrate of the First or Second Class at the time of the passing of the order. The section does not authorise a subsequent transfer of the case to some other Magistrate. This view finds support, as stated earlier, in AIR 1950 All 475 (A), Mohammad Baksh v. Emperor, AIR 1948 Lah 49 (B), Umrao Singh v. Kan-war Lal, AIR 1938 Lah 323 (C). The contrary view appears to be taken by the Patna and Calcutta High Courts, and some of these cases may be noticed here.
6. In Jagroshan Bharthi v. Madan Pande, AIR1927 Pat 265 (D), no reasoning has been given, but reliance has been placed on the earlier Calcuttacases. In a later case Chanderdip Mahton v. Emperor, AIR 1945 Pat 334 (E), the previous view ismodified, and there is an observation that in law the Magistrate can only direct the appearance of the person before another Magistrate at the time of passing the conditional order. The case, however, goes on to hold that if the case is subsequently transferred, it is only irregularity which is curable under Section 529 of the Code of Criminal Procedure.
7. In Calcutta, there seems to be a divergence of opinion. In Inasaddar Ali v. Isimulla, AIR 1929 Cal 813 (F), a Division Bench of the Calcutta High Court held that the Magistrate could not transfer the case after issue of the preliminary order. Actually in that case only a report was demanded from the other Magistrate, but the observations are that the making over of the case to any other Magistrate after issue of the notice was not permissible.
In Pran Krishna Das v. Shyam Sundar Sarkar, AIR 1949 Cal 637 (G), Sen J. held in clear terms that Section 133 did not authorise the transfer of the case after the issue of the preliminary order, and stress was laid down in paragraph 11 of that judgment to the special provisions of Section 133, which should be interpreted to give effect to those provisions. The contrary view is taken in Bardeswari Prosad Bha-ttacharjee v. Rabi Nandan Saha, AIR 1956 Cal 24 (H), another Division Bench case, but no reasons are given for dissenting from the decision in AIR 1949 Cal 637 (G), while AIR 1929 Cal 813 (F) is only referred to as not being in point.
Another Calcutta case, which is not reported, and which is found in the Notes of UnreportedCases, is Madar Gaz v. Mohar Molla, AIR 1955 N. U. C. (Cal) 549 (I), which supports the view taken in AIR 1949 Cal 637 (G).
8. There is thus divergence of opinion in the Calcutta High Court, and some of these cases really support the view taken by the Allahabad High Court, which has appealed to us as stated above. The majority of the decisions have held that if the District Magistrate, the Sub-Divisional Magistrate or the First Class Magistrate has no power to transfer after the issue of the conditional order, then the subsequent proceedings by the Magistrate are without jurisdiction. We agree in that opinion.
9. As a result of the above discussion the reference made by the learned Additional SessionsJudge, Baran, dated 3-2-1956, is accepted, the order of the Sub-Divisional Magistrate, Baran, dated30-8-1955, transferring the case to the Court ofFirst Class Magistrate, Baran, is set aside, and thesubsequent proceedings are quashed. The casewill go back to the Sub-Divisional Magistrate, Baran,for further proceedings according to law.