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CALCUTTA HIGH COURT
A. K. DE, J.
MADAN MOHAN CHOWLIA
VERSUS
ASHUTOSH SASMAL AND OTHERS
Criminal Revn. Case No. 504 of 1974,
Decided On : 13 -1 -1975.
CRIMINAL PROCEDURE CODE - SECTION 133 - PUBLIC NUISANCE - PROCEDURE FOR DEALING WITH PROCEEDINGS - MANDATORY PROVISIONS - DEPARTURE FROM PROCEDURE - ILLEGALITY - TRANSFER OF PROCEEDINGS - JURISDICTION - ENQUIRY INTO EXISTENCE OF PUBLIC RIGHT AND OBSTRUCTION - SEPARATE ENQUIRIES - FAILURE TO COMPLY WITH PROCEDURE - VITIATION OF PROCEEDING.
Fact of the Case:
A proceeding under Section 133 of the old Code of Criminal Procedure was initiated based on a mass petition alleging obstruction of a public drain by the petitioner's construction. The petitioner appeared before the Magistrate and filed a show cause. The Magistrate transferred the case to another Magistrate, Sri M.C. Sengupta, who conducted an enquiry and made an order under Section 137 of the Code, making the earlier order of the Sub-Divisional Judicial Magistrate absolute.
Finding of the Court:
The court found that the Magistrate had not followed the mandatory provisions of the Code in conducting the enquiry and making the order. The court held that the Magistrate should have first conducted an enquiry under Section 139-A(1) to determine whether the petitioner denied the existence of the public right in respect of the channel, and only then proceed under Section 137 to determine whether there was obstruction to the use of the channel by the public.
Issues: 1. Whether the Magistrate had jurisdiction to transfer the proceeding to another Magistrate before the petitioner had shown cause against the conditional order. 2. Whether the Magistrate had followed the mandatory provisions of the Code in conducting the enquiry and making the order. 3. Whether the petitioner had denied the existence of the public right in respect of the channel.
Ratio Decidendi: 1. The court held that the Magistrate had no jurisdiction to transfer the proceeding to another Magistrate before the petitioner had shown cause against the conditional order. The court relied on the provisions of Section 133 of the Code, which states that the Magistrate who draws up the proceeding can ask the opposite parties to show cause before some other Magistrate, but only after show cause has been filed by the party proceeded against before (1) the Magistrate who draws up the proceeding or (2) before the Magistrate to whom Magistrate, drawing up the proceeding has directed the party to appear and show cause. 2. The court held that the Magistrate had not followed the mandatory provisions of the Code in conducting the enquiry and making the order. The court held that the Magistrate should have first conducted an enquiry under Section 139-A(1) to determine whether the petitioner denied the existence of the public right in respect of the channel, and only then proceed under Section 137 to determine whether there was obstruction to the use of the channel by the public. The court held that the Magistrate's failure to comply with the mandatory provisions of the Code had vitiated the proceeding and the order. 3. The court held that the petitioner had denied the existence of the public right in respect of the channel in his show cause filed on 10-7-1973. The court held that the petitioner's denial of the public right was sufficient compliance with the provisions of Section 139-A(1).
Final Decision: The court made the rule absolute, set aside the order of the Magistrate dated 8-12-1973, and directed that he proceed with the case from the stage reached on 22-6-1973 in accordance with the observations in the judgment and in accordance with law.
1. The second party in a proceeding under Section 133 of the old Code of Criminal Procedure, 1898 to be hereafter called the Code, is petitioner before me. Ashutosh Sashmal and others the opposite parties in this rule filed a mass petition before Revenue Minister of the Government. The said petition was enquired into and a report submitted to the Sub-Divisional Executive Magistrate Uluberia. Reading that report the learned Sub-Divisional Executive Magistrate has drawn up a proceeding under Section 133 of the Code and has served a copy of his order on the petitioner requiring him to appear before "himself" on 3-7-1973 and to move to have his order set aside or modified or to show cause why the order shall not be enforced. The petitioner appeared before the said Sub-Divisional Executive Magistrate on 3-7-1973, applied for time and was granted time upto 10-7-1973. The learned Sub-Divisional Executive Magistrate by the same order of that date transferred the case to the file of Sri M.C. Sengupta, a Magistrate with 2nd Class power, for favour of disposal. On 10-7-1973, the petitioner appeared before the said transferee Magistrate Sri Sengupta and filed show cause. He fixed 25-5-1973 for hearing. On 23-8-1973 he examined four witnesses in-chief. There was no cross-examination of the witnesses that day. He fixed another date for cross-examination. In 15-11-1973 three of the witnesses examined-in-chief were cross-examined. The remaining fourth witness was cross-examined on 22-1-1973. Arguments were heard on that date and the Magistrate fixed 8-12-1973 for orders. On that date he has made the following order.
"I, therefore, endorse that the order Dated 22-6-1973 of the Sub-Divisional Magistrate, is made absolute and be enforced and direct 2nd party under Section 144, Criminal Procedure Code (?) to demolish and remove the structure or portion of the structure on plot No. 1526 of Khatian No. 316 within mouza Aiodhya J. L. No. 71 adjoining the Hume-pipe towards removal of the obstruction within fifteen days from this date and report compliance, failing which it will be performed and he will be penalised provided under the Act in force."
2. The petitioner moved the Sessions Judge against that order. The Sessions Judge has rejected that application in the view that the revisional application does not lie before him. He has rejected the petition in limine without going into the merits. The petitioner has moved this Court in the revision under Section 401 of the new Code of Criminal Procedure 1974.
3. To appreciate the contentions made in this case a short summary of the facts of the case may be given.
4. Bimala Devi was the owner of R.S. Dag No. 1526. She sold it to the petitioner on 21-5-1968 and put him in possession. The petitioner raised the level of the land and is residing there with his family making a pucca structure on it. Ashutosh Sashmal and others in their mass petition stated that there is a public drain to the east of R.S. Dag No. 1526 and that the petitioner has obstructed it by raising pucca structure on its Mohana (mouth). The petitioner in showing cause before Sri Sengupta stated that there is no public drain and that he has not obstructed it by a construction on its mohana. The learned Sub-Divisional Executive Magistrate has drawn up a proceeding under Section 133 of the Code being satisfied that the petitioner has, by making an unlawful construction, obstructed a public drain (channel) and free flow of water through it from the paddy fields of several Mouzas and has made a conditional order requiring him to remove the said obstruction by demolishing his structure. He has shown cause against the order. The learned Magistrate has made an order under Section 137 of the Code making the earlier order of the Sub-Divisional Judicial Magistrate absolute. The procedure adopted by the Magistrate in disposing of the matter is challenged as illegal contending that it has been made in disregard of the mandatory provisions of the
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