Debabrata Mookerjee, J.
1. The petitioner is being proceeded against for alleged infringements of the provisions of the Bengal Highways Act 3 of 1925 as amended by the West Bengal Act 17 of 1953 before a Magistrate at Balurghat. It appears that there are two proceedings pending against him for violation of the Bengal Highways Act and the learned Magistrate who is dealing with them has amalgamated these two proceedings and directed the two complaints in the two cases to be merged in one.
The encroachments complained of in the two cases are entirely different and they constitute if proved wholly separate infringements even according to the prosecution. Complaint is now made that by reason of the consolidation of these two proceedings into one there is chance or likelihood of prejudice accruing to the petitioner.
2. I think there is considerable force in this contention. The mere fact that the petitioner happens to be the same person proceeded against in both the proceedings and that the infringements alleged relate to violation of the provisions of the Bengal Highways Act as amended by West Bengal Act 17 of 1953 will not be 'sufficient justification . for amalgamating the two cases and trying them as one. It is unnecessary to set out in detail the danger of such a course.
The petitioner may reasonably have one kind of defence in respect of the infringement alleged in one case and an entirely different type of answer with respect to the allegations made against him in the other. It is only common sense that the petitioner should not be prejudiced by the two cases being lumped up and dealt with and disposed of at one trial.
3. Mr. Roy appearing on behalf of the petitioner points out that in one of these cases (Case No. 485C of 1954) complaint is made that the petitioner has encroached 47'-6'x10'-6' area of road side land in the last mile of Hilli Balurghat Road by erecting a masonry structure with corrugated iron roof. Mr. Roy contends that having regard to the definition of Government road appearing in Section 2, Bengal Highways Act 3 of 1925, it is quite clear that only lands and embankments vested in or under the control and administration of the Public Works Department and attached to Government road are meant to be protected and the encroachment in order to be punishable under the Act must relate to such land.
It is contended that the complaint at any rate does not indicate that the road side land is attached to Government road as defined in Clause (b) of Section 2 of the Act. True, the complaint that has been preferred by the Sub-divisional Officer, W and B Department, does not in terms say that the land encroached upon is attached to Government road. But it would, in my view, be extremely unfair to limit the prosecution to what is merely stated in the complaint.
It may very well be that evidence will be forthcoming to fix the identity of the land including its exact situation and the area of encroachment which will establish the essential fact that the land encroached upon is attached to Government road. If the prosecution does not succeed in proving that, the petitioner will be entitled to be acquitted. This is an objection which to my mind is premature. I do not think it would be right to quash the proceedings at this stage on that account.
4. Furthermore, it is clear on a reference to the examination of the petitioner under Section 242, Criminal P. C., that questions were put to him the trend of which would indicate that the prosecution was not in two minds with regard to the identity of the land. In any event, as the matter is awaiting decision of the Magistrate I should not at this stage say anything which might pre-determine the issue or even remotely injure either of the parties. All that I wish to say is that this is not the stage when this Court can reasonably be expected to interfere.
5. On the next point made by Mr. Roy that cognizance in the second prosecution that has been launched against the petitioner has not been properly taken, the learned Magistrate has submitted an explanation which sets out the circumstances in which cognizance was in fact taken. Even if there is any substance in the complaint that the Magistrate was not competent to take cognizance, Section 529, Clause (e), Criminal P. C., appears to me to be a complete answer to this alleged defect in the proceedings. I am therefore not prepared to quash the second proceedings on this ground.
6. As I have already indicated the order directing consolidation of the two cases against the petitioner appears to me to be had and fraught with danger to the petitioner. I therefore set aside the order of the learned Magistrate directing amalgamation of the two cases and order that they be dealt with separately.
7. The Rule is disposed of accordingly.