Debabrata Mookerjee, J.
1. This Rule is directed against an order of a Magistrate, First Class, Contai, dated 10-10-1955 by which a certain conditional order was made absolute under Section 137(3), Criminal P. C.
2. The proceedings were instituted at the instance of the opposite party and they appear to have had a rather chequered career which it is necessary to notice.
3. On 26-3-1955 the opposite party filed a petition whereupon the Sub-divisional Magistrate of Contai directed the issue of a notice on the petitioners to show cause why proceedings under Section 133, Criminal P. C. should not be drawn up against them. On the 20th April the petitioners appeared and prayed for time to show cause. Time was allowed till the 30th April.
On the last mentioned date the petitioners appeared and produced certain papers in support of their contention. Obviously, the Magistrate was not satisfied as to the plausibility of the case made by the petitioners and then directed proceedings under Section 133, Criminal P. C. to be drawn up as between the petitioners as second party and the opposite party as first party thereto.
The Sub-divisional Magistrate made a conditional order requiring the petitioners either to remove the obstruction from the plot in question or to appear and move to have the order set aside or modified before the Magistrate named in the order, viz. Sri A. D. Bagchi. Thereafter on 18-5-1955 the petitioners appeared before Sri Bagchi J and denied the existence of a public right over the pathway.
Witnesses were examined before the learned Magistrate under Section 139A, Criminal P. C. and after hearing arguments the learned Magistrate Sri Bagchi came to the conclusion that there was no substantial evidence in support of the denial of public right produced by the petitioners with the result that the proceedings were directed to continue under Section 137 of the Code.
Thereafter the petitioners made an unsuccessful attempt to have the matter referred to a Jury. That application was quite rightly rejected inasmuch as the petitioners had already shown cause, and the right to show cause or to ask for appointment of a Jury are clearly alternative rights given to a party under the Code.
Thus a decision was reached by Sri Bagchi in terms of Section 139A, Criminal P. C. When the proceedings reached that stage, Sri Bagchi, it appears, was transferred, whereupon on 13-7-1955 the proceedings were withdrawn by the Subdivisional Magistrate and transferred to the file of Sri A. K. Banerjee, another learned Magistrate of the place.
Before this last named Magistrate attempt was further made by the petitioners to revive the prayer for appointment of a Jury which was quite properly again rejected by Sri Banerjee. Then, it appears, evidence was produced by the partieswhich was taken by the learned Magistrate Sri Banerjee who in the end came to the conclusion that the conditional order issued should be made absolute and ordered accordingly. It is against this last order that the present petition is directed.
4. Mr. Mullick appearing in support of the Rule has questioned the validity of the proceedings on the ground that they contravened the provisions of the law as respects trial of proceedings under Chapter 10, Criminal P. C. The contention is that Section 133 requires that when a conditional order is made the Magistrate before whom the party is required to show cause has to be named and it is before the Magistrate so named that the proceedings have to continue.
In the instant case the conditional order issued by the Sub-divisional Magistrate on 30-4-1955 named Sri Bagchi as the Magistrate before whom the proceedings were directed to be had. Accordingly, Sri Bagchi commenced the proceedings, heard evidence under Section 139A, Criminal P. C. and then gave a decision that in the circumstances disclosed before him there was no substantial evidence in support of the denial of public right and consequently he decided to proceed in accordance with the provisions of Section 137 of the Code.
It was at this stage that Sri Bagchi was transferred and the proceedings were then made over to the file of Sri A. K. Banerjee for disposal. Sri A. K. Banerjee then took up the proceedings from the point reached by Sri Bagchi and continued them by taking evidence under Section 137 of the Code and then proceeded to judgment by which he called upon the petitioners to remove the obstruction.
5. I think, Mr. Mullick's contention has to be upheld. The scheme of the sections appearing in Chapter 10 of the Code makes it clear that the proceedings have to start before a Magistrate named in the conditional order and thereafter they have to be continued before that Magistrate. If for any reason the Magistrate named in the conditional order is not available to continue the proceedings, I think, the proceedings cannot be transferred to another Magistrate to be dealt with by him.
Reference need only be made to Sub-section (1) of Section 133 of the Code which provides that when a Magistrate makes a conditional order requiring a person to remove an obstruction or nuisance, the person so ordered to act is to appear before either the Magistrate who makes the conditional order or before some other Magistrate named in that order and then move to have the order set aside or modified in the manner indicated in the Chapter.
Section 139A then provides that the Magistrate has first to satisfy himself whether there is a denial of public right, and if there is any such denial whether there is substantial evidence in support of it. If the Magistrate finds that there is no such evidence, then he is required to proceed in accordance with the provisions of Section 137. This section requires the Magistrate to proceed in the manner as in a summons case.
Taking these sections together, it is only reasonable to hold that the Magistrate before whom proceedings are had under Section 139A is the Magistrate who is required by law to continue the proceedings under Section 137 of the Code and proceed to a final order.
If after the conclusion of an inquiry under Section 139A the Magistrate is unable to continue the proceedings for some reason or other or if the proceedings are transferred to some other Magistrate, I think, the proceedings thereafter become incompetent. In the present case, there cannot be any doubt that the proceedings which commenced before one Magistrate were concluded by another which the law does not sanction. The scheme of the sections in Chapter 10, Criminal P. C. appears to forbid it.
6. Question then arises whether during the pendency of proceedings under Section 133 it is open to the Sub-divisional Magistrate or the District Magistrate to transfer the proceedings to another Magistrate. The power of transfer is given by Section 192, Criminal P. C.
That section provides that the Chief Presidency Magistrate or the District Magistrate or the Subdivisional Magistrate may transfer any case or which he has taken cognizance for inquiry or trial to any Magistrate subordinate to him. There is a sub-section which follows to which no reference need be made as it is not relevant to the present purpose.
It, therefore, follows that the power of transfer under Section 192 is limited to a case of which cognizance has been taken. That means and implies the commission of an offence of which cognizance has been taken. But in proceedings under Section 133, Criminal P. C. there is no question of taking cognizance of an offence. This is a proceeding which does not involve the taking of cognizance as understood in legal parlance.
That being so, Section 192 cannot possibly be called in aid to support an order of transfer of proceedings under Section 133, Criminal P. C. Apart from these conditions it must be held that proceedings commenced under Section 133, Criminal P. C. before a Magistrate have to be concluded before him. The reason for such procedure is not far to seek.
Obviously, the legislature felt that where a person is going to be precluded from exercising his rights on grounds of public health, safety or convenience all matters appertaining to the questions must be heard and disposed of by one and the same Magistrate who has had the advantage of seeing witnesses and hearing evidence during the two stages in which proceedings under Section 133 of the Code divide themselves.
There are indeed two distinct stages of the proceedings envisaged in Chapter X: The first stage is envisaged in Section 139A; and if after the conclusion of that stage the Magistrate is satisfied that there is no satisfactory evidence in denial of public right, he will continue the proceedings under Section 137 which represents the second stage at the conclusion of which the Magistrate will proceed to a final order.
It is, therefore, quite understandable why the Legislature thought it fit that in a case like this, the entire proceedings must be heard and disposed of by one and the same Magistrate; and that being so, the scheme of Chapter X repels the notion of transfer so that the proceedings may be effectively prevented from being dealt with in a piecemeal fashion. Even the wide wards of Section 528(2) of the Code cannot be allowed to prevail and interfere with the scheme of Chapter X of the Code.
7. In the present case it is quite clear that the proceedings were dealt with compartmentally; the stage represented by Section 139A was disposed of by Sri Bagchi, and then the proceedings were taken over on transfer by Sri A.K. Banerjee who concluded the same. This is not what the law permits; and that being so, I must uphold Mr. Mullick's contention and make the Rule absolute.
8. The proceedings are accordingly discharged, the order complained of is set aside and freshproceedings will be taken by another competentMagistrate to be dealt with in accordance withlaw.