J.P. Mitter, J.
1. This Rule is directed against an order of a first class Magistrate at Lalbagh proposing to proceed against the petitioner under Section 137, Cr. P. C.
2. It appears that at the instance of the Opposite Party proceedings under Section 133, Cr. P. C. were drawn up against the petitioner by the learned Sub-Divisional Officer of Lalbagh. By the order concerned the petitioner was required to show cause before the said learned Sub-Divisional Officer. Upon the petitioner showing cause, the case was transferred by the learned Sub-Divisional Officer to the court of Mr. Majumdar a First Class Magistrate.
Mr. Majumdar purported to proceed under Section 139A, Cr. P. C. As the order shows, he questioned the petitioner as to the existence of the alleged public right in respect of the way said to have been obstructed, examined certain papers and then proposed to proceed under Section 137, Cr. P. C.
3. Mr. J. M. Banerjee has urged two points;
4. The first point is that the learned Sub-Divisional Officer before whom the petitioner showed cause had no jurisdiction to transfer the case to Mr. Majumdar. In support of this contention. Mr. Banerjee has cited a decision of A. N. Sen, J., reported in -- 'Pran Krishna Das v. Shyam Sundar Sarkur' AIR 1949 Cal 637 (A). Sen J, purported to rely upon an earlier decision of a Division Bench of this Court reported in -- 'Inasaddar Ali v. Isi-mulla' : AIR1929Cal813 . Mr. Prusun Chandra Ghose appearing on behalf of the opposite parry has cited a Division Bench decision reported in --Tulsibala Rakshit v. N. N. Ghosal' : AIR1953Cal109 .
In our view, the contention put forward by Mr. Banerjee cannot be sustained. Section 133, Cr. P. I C., does not in terms purport to restrict the power of a Magistrate who initiates proceedings to transfer the case to some other learned Magistrate. Section 192, Cr. P. C. empowers a Sub-Divisional Magistrate, amongst other functionaries to transfer a case to some other learned Magistrate in circumstances, mentioned in the section itself.
5. In our view, the case reported in AIR 1923Cal 813 (B) is no authority for saying that the learned Sub-Divisional Magistrate in this case had no jurisdiction to transfer the case to the file of Mr. Majumdar for disposal. It must at the same time be conceded that the decision of Sen, J., is in point. We must however respectfully dissent from the view taken by Sen, J. In our view, the provisions of Section 192 are wide enough to confer upon the learned Sub-Divisional Magistrate a power to transfer the case to some other Magistrate, although by the order directing the petitioner to show cause it was expressly stated that the petitioner was to show cause before the learned Sub-Divisional Magistrate himself. In our view, there is no substance in the first contention urged by Mr. Banerjee.
6. As to the second point, viz., that there was no strict compliance with the provisions of Section 139A, Cr. P. C., we think that Mr. Banerjee's contention should succeed. The order of 12-9-1953, was as follows :
'Heard parties. Examined the O. P. under Section 139A, Cr. P. C. O. P. denies the existence of public right. Examined the connected papers. It appears the plot in question had been recorded as a Dahar. O. P. had already since removed a fencing from this plot on the Order of S. D. O. So I shall proceed under Section 137, Cr. P. C. To 28.9 for evidence.'
It is clear that Section 139A provides that the Magistrate shall question the second party as to whether he denies the existence of the public right alleged.
The section also provides that if the second party should deny the existence of any such right, the Magistrate shall, before proceeding under Section 137 or Section 138, enquire into the matter. The second requirement involves affording an opportunity to the second party to produce evidence in support of his denial. The section also requires that if upon such enquiry the Magistrate finds that there is any reliable evidence in support of such denial, he shall stay the proceedings until the question of the existence of a public right has been decided by a competent Civil Court.
The section further provides that should the Magistrate find that there is no such evidence in support of the denial of the existence of a public right, he shall proceed as laid down in Section 137 or Section 138, as the case may require. It is thus seen that upon the second party's denial of the existence of the alleged public right, there is to be a proper enquiry ending with a definite finding by the learned Magistrate as to the reliability or otherwise of the evidence in support of such denial.
7. The learned Magistrate here appears to have decided that such enquiry as he made justified his proceeding under Section 137, Cr. P. C. It would follow therefore that he could not have been satisfied that the evidence in support of the opposite party's denial was reliable. The order concerned does not however indicate what the actual evidence in support of the opposite party's denial was, nor does it show why the evidence in support of the opposite party's case was considered unreliable.
In our view, the provisions of Section 139A must be expressly complied with. The order complained of docs not indicate any such compliance. That being the position, we must set aside the order of 12-9-1953, and direct that some learned Magistrate other than Mr. K. G. Majumdar should take up the case from the point where the provisions of Section 139A become operative and dispose of the matter in accordance with law.
8. The Rule is disposed of accordingly.
Renupada Mukherjee, J.
9. I agree.