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1996 Supreme(Pat) 549
HIGH COURT OF PATNA
Dr. J.N. Dubey, J.
Ram Naresh Singh & ors. – Applicants
vs.
Muni Singh Yadav & ors. - Opp. parties
Criminal Revision No. 460 of 1990
Decided On : 27.8.1996
For applicants : M/s Surya Bhushan Prasad Singh & Nand Bansh Narain Singh.
For Opposite parties : None
The Sub-divisional Magistrate has jurisdiction to transfer the case to the Executive Magistrate under Section 133(1) read with Sections 23 and 411 Cr. RC., after passing the conditional order.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 133, 137, 139, 23, 411 - PUBLIC NUISANCE - JURISDICTION OF SUB-DIVISIONAL MAGISTRATE TO TRANSFER CASE TO EXECUTIVE MAGISTRATE - PROCEDURE TO BE FOLLOWED BY EXECUTIVE MAGISTRATE - OPPORTUNITY TO LEAD EVIDENCE.
Fact of the Case:
The Sub-divisional Magistrate, Buxar initiated a proceeding under Section 133 Cr. P.C. against the applicants and the opposite party nos. 2 and 3. He passed a conditional order in pursuance of which the applicants and opposite party nos. 2 and 3 appeared before him and denied the existence of any public right in respect of way. They were directed to lead evidence in support of their denial. Accordingly, they led evidence in support of their claim. The Executive Magistrate after considering the evidence of the applicants and the opposite party nos. 2 and 3 came to the conclusion that there existed no public right in respect of the way and accordingly, dropped the proceedings on 10.11.1986. The opposite party no. 1 filed revision before the Sessions Judge, Bhojpur at Arrah which was allowed by the 10th Additional Sessions Judge on 24.4.1990.
Finding of the Court:
The Additional Sessions Judge erred in holding that the Sub-divisional Magistrate had no jurisdiction to transfer the case to the Executive Magistrate without conducting the enquiry. The Sub-divisional Magistrate was quite competent to transfer the case to the Executive Magistrate under Section 133(1) read with Sections 23 and 411 Cr. RC., after passing the conditional order. The Additional Sessions Judge also erred in holding that the Executive Magistrate was not justified in acting on the inspection report of the Advocate Commissioner without examining him. The Executive Magistrate had appointed an Advocate Commissioner to make local investigation and submit report and, therefore, this case was covered by clause (a) and not by clause (b) of Section 139 Cr. P.C. The Additional Sessions Judge also erred in holding that the Executive Magistrate was not legally justified in deciding the proceedings under Sections 137 simultaneously. A plain reading of the order of the Executive Magistrate would show that he passed the order only under Section 137 and not under Section 138.
Issues: 1. Whether the Sub-divisional Magistrate had jurisdiction to transfer the case to the Executive Magistrate without conducting the enquiry? 2. Whether the Executive Magistrate was justified in acting on the inspection report of the Advocate Commissioner without examining him? 3. Whether the Executive Magistrate was legally justified in deciding the proceedings under Sections 137 simultaneously?
Ratio Decidendi: 1. Under Section 133 (1) a Magistrate may make conditional order requiring the person concerned to do or not to do a certain thing, or to appear before himself or some other Executive Magistrate subordinate to him and show cause why the order should not be made absolute. Under Section 23 Cr. P.C. every Executive Magistrate exercising powers in subdivision is subordinate to the Sub-divisional Magistrate. Under Section 411 (a) a District Magistrate or a Sub-divisional Magistrate may transfer any proceeding, which has been started before him, to any Magistrate subordinate to him. Since all Executive Magistrates exercising powers in a sub-division are subordinate to the Sub-divisional Magistrate under Section 23 (1) Cr.P.C. the Sub-divisional Magistrate, Buxar was quite competent to transfer the case to the Executive Magistrate, Buxar after passing conditional order under Section 133 (1) Cr. P.C. 2. While relying on the report of the Advocate Commissioner the Magistrate had acted under clause (a) and not clause (b) and, therefore, the question of examining the expert did not arise. 3. A plain reading of the order of the Executive Magistrate would show that he passed the order only under Section 137 and not under Section 138.
Final Decision: The revision succeeds and is allowed. The order dated 24th April, 1990 of the 10th Additional Sessions Judge, Bhojpur at Arrah is set aside.
Dr. J.N. Dubey, J.
This revision is directed against the order dated 24th April, 1990 of the 10th Additional Sessions Judge, Bhojpur at Arrah.
2. It appears that on the application of the opposite party no. 1, the Sub-divisional Magistrate, Buxar initiated a proceeding under Section 133 Cr. P.C. against the applicants and the opposite party nos. 2 and 3. He passed a conditional order in pursuance of which the applicants and opposite party nos. 2 and 3 appeared before him and denied the existence of any public right in respect of way. They were directed to lead evidence in support of their denial. Accordingly, they led evidence in support of their claim. The Executive Magistrate after considering the evidence of the applicants and the opposite party nos. 2 and 3 came to the conclusion that there existed no public right in respect of the way and accordingly, dropped the proceedings on 10.11.1986. The opposite party no. 1 filed revision before the Sessions Judge, Bhojpur at Arrah which was allowed by the 10th Additional Sessions Judge on 24.4.1990. Feeling aggrieved the applicants have filed this revision.
3. Heard the learned counsel for the applicants and perused the record. None has appeared on behalf of the opposite parties.
4. The view of the Additional Sessions Judge that the Sub-divisional Magistrate had no jurisdiction to transfer the case to the Executive Magistrate without conducting the enquiry, is wrong. The Sub-divisional Magistrate was quite competent to transfer the case to the Executive Magistrate under Section 133(1) read with Sections 23 and 411 Cr. RC., after passing the conditional order. In order to appreciate this aspect of the case Section 133 Cr. P.C. is quoted below:-
"Conditional order for removal of nuisance. - (1) Whenever a District Magistrate or a Sub-divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government, on receiving the report of a police officer or other information and on taking such evidence (if any) as he think fit, considers-
(a) that any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel which is or may be lawfully used by the public; or
(b) That the conduct of any trade or occupation, or the keeping of any goods or merchandise, is injurious to the health or physical comfort of the community, and that in consequence such trade or occupation should be prohibited or regulated or such good or merchandise should be removed or the keeping thereof regulated; or
(c) that the construction of any building or, the disposal of any substance, as is likely to occasion conflagration or explosion, should be prevented or stopped; or
(d) that any building, tent or structure, or any tree in such a condition that it is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by, are that in consequence the removal, repair or support of such building, tent or structure, or the removal or support of such tree, is necessary; or
(e) that any tank, well or excavation adjacent to any such way or public place should be fenced in such manner as to prevent danger arising to the public; or
(f) that any dangerous animal should be destroyed, confined or otherwise disposed of, such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation, or keeping any such goods or merchandise, or owning, possessing or controlling such building, tent, structure, substance, tank, well or excavation or owning or possessing such animal or tree, within a time to be fixed in the order
(i) to remove such obstruction or nuisance; or
(ii) to desist from carrying on, or to remove or regulate in such manner as may be directed, such trade or occupation, or to remove such goods or merchandise, or to regulate the keeping thereof in such manner as may be directed; or
(iii) to prevent or stop the constructio
