Sen, J.:— This is a Reference by the Additional Sessions Judge of Malda, West Dinajpur, recommending that the order passed in proceedings under s. 133 of the Code of Criminal Procedure by. Sri T.P Ghosh, Magistrate exercising First Class powers at Balurghat, should he set aside.
The facts briefly are as follows: Pran Krishna Das filed an application under s. 133 of the Code of Criminal Procedure, in the court of the Sub-divisional Magistrate, Balurghat, alleging that the petitioner Shyam Sundar Sarkar had obstructed a public pathway. Upon this application being made, the magistrate ordered a preliminary enquiry by the police and, thereafter, he passed a conditional order under s. 133 of the Code of Criminal Procedure, directing the petitioner to remove the obstruction or to appear before him and move to have the conditional order set aside. When the petitioner appeared before the learned Sub-divisional Magistrate, the learned magistrate, instead of holding any enquiry himself, passed a somewhat curious order which I reproduce below:—
Second party denies existence of public way and also denies obstruction. First party to prove public nature of the way before Sri D. Maitra, Magistrate, First Class.
Thereafter, the matter was heard by Sri D. Maitra, purporting to act under s. 139A of the Code of the Criminal Procedure. He held that the denial of the existence of public right of way by the petitioner was a mere pretense. This magistrate passed no further orders, but sent his report or decision to the Sub-divisional Magistrate for orders. The Sub-divisional Magistrate then passed an order sending the case to Sri T.P Ghosh, Magistrate, First Class, “for favour of disposal according to lav?” and this learned magistrate passed the final order, holding that there was an obstruction and making the order of the Sub-divisional Magistrate absolute.
Against this order, the petitioner moved the learned Sessions Judge and he has made the present Reference. He points out that the order of the Sub-divisional Magistrate directing Sri D. Maitra to deal with the objection of the petitioner as to the existence of a public way was an order without jurisdiction and that consequently the entire proceedings have been vitiated.
The case has been argued by learned advocates for both parties before me in great detail. Mr. Roy, appearing for the opposite party, has argued with ability and frankness. Two main questions arise for determination and they may be framed thus:—
(i) Has a magistrate, who passes an order under s. 133 of the Code of Criminal Procedure, directing a party to remove an obstruction or to appear before him and move that the order be set aside, power to transfer the case when the party appears before him?
(ii) If he has such power, can he order a “piecemeal transfer” of the case by directing another magistrate to deal with the question whether there is reliable evidence in support of the denial of the existence of a public pathway?
In my opinion, both these questions must be answered in the negative. Under s. 133 of the Code of Criminal Procedure, when information is placed before a magistrate that there has been an obstruction to a public pathway, the learned magistrate may pass an order upon the person complained against directing him to remove the obstruction, or to appear before him or some other magistrate of the First or Second Class to show cause why the preliminary order passed by him should not be set aside or modified. The words in the last portion of sub-s. (1) of s. 133 of the Code of Criminal Procedure are as follows:—
To appear before himself or some other magistrate of the first or second class, at a time and place to be fixed by the order, and move to have the order set aside or modified in the manner hereinafter provided.
It is clear from this portion of s. 133 of the Code of Criminal Procedure that, at this stage, a magistrate has to decide whether cause has to be shown before him or before some other magistrate not below a magistrate of the second class. He is to make up his mind at this stage. There is no provision in this chapter which expressly or impliedly empowers the magistrate, before whom a party appears and shows cause to transfer the matter to any other magistrate. Section 137 of the Code of Criminal Procedure provides that, if the person appears and shows cause against the order, the magistrate shall take evidence in the matter as in a summons case and pass the final order. This clearly indicates, to my mind, that the investigation should be made by the magistrate before whom cause is shown. Before making the final order, or taking evidence, a certain procedure must be followed. This is provided for in s. 139A of the Code of Criminal Procedure, which says that, when an order is made under s. 133,—
the Magistrate shall, on the appearance before him of the person against whom the order was made, question him as to whether he denies the existence of any public right in respect of the way, river, etc. and, if he does so, the magistrate shall, before proceeding under s. 137 or s. 138, enquire into the matter.
Sub-section (2) of s. 139A of the Criminal Procedure Code provides that if the magistrate, on such enquiry as is mentioned in sub-s. (1), finds that there is any reliable evidence in support of such denial, he shall stay proceedings until the matter is decided by the civil court; if, however, he finds that there is no such evidence, he shall proceed as laid down in s. 137 or 138 to dispose of the case.
Now, from the words of s. 139A, it seems clear that the magistrate, who is to make the enquiry, as to whether there is any reliable, evidence in support of the claim that the alleged pathway is not a public pathway, is the magistrate before whom the person is directed to appear and show cause; that is to say, before the magistrate who passed the order under s. 133 of the Code of Criminal Procedure or the magistrate designated by him in the order. In this case, it would be before the learned Sub-divisional Magistrate. It is also clear from the provisions of the chapter that the magistrate, who makes this enquiry, is to dispose of the case finally. There is, in my opinion, no scope for the view that, when a person appears pursuant to an order passed by a magistrate under s. 133 of the Code of Criminal Procedure directing the person to show cause before him, such magistrate, before whom he appears, can transfer the case to some other magistrate.
Learned advocate appearing for the opposite party draws my attention to the provisions of s. 192 of the Code of Criminal Procedure, which empowers the Chief Presidency Magistrate, District Magistrate and the Sub-divisional Magistrate to transfer a case of which he has taken cognizance for enquiry or trial to any magistrate subordinate to him. In my opinion, s. 192 of the Code of Criminal Procedure has no application whatsoever to proceedings under s. 133 of the Code of Criminal Procedure. Section 192 appears in Part VI of the Code of Criminal Procedure, which is headed “Proceedings in Prosecution.” Now, proceedings under s. 133 of the Code of Criminal Procedure are not proceedings in prosecution. This section appears in Part IV of the Code, which is entitled “Prevention of Offences.” This part of the Code does not deal with the trial or prosecution of persons, who have committed offences, but it contains provisions which are directed towards preventing offences being committed. The provisions of Part VI come into operation after an offence has been committed and they deal with the procedure relating to the prosecution of a person, who had committed an offence, or has been charged with having committed an offence. Apart from the titles of these two parts of the Code, the wording in s. 192 itself makes the position clear. It deals with a case of which cognizance has been taken. Now, cognizance can only be taken of an offence. Section 190 is one of the sections which deals with the manner in which cognizance may be taken of an offence. It is clear, therefore, that s. 192 concerns offences. Section 133, however, does not deal with offences, but it deals with other matters, namely, the prevention of offences. A magistrate acting under s. 133 of the Code of Criminal Procedure cannot be said to take cognizance of an offence which has been committed. For these reasons, I hold that s. 192 of the Code of Criminal Procedure does not empower a magistrate, who directs a person to appear before him under s. 133 of the Code of Criminal Procedure, to transfer the case to any other magistrate. He must try the case himself in this view, I am supported by a decision of this Court in the case of Mamddar Ali v. Isamulla, where it was held that there is no power in the magistrate acting under s. 133 of the Code of Criminal Procedure to transfer the matter to another magistrate to hold an enquiry in accordance with the provisions of s. 139A. The learned Judges, who decided this case, set aside the proceedings and directed that fresh proceedings may be instituted, if necessary. Learned advocate opposing the Reference stated that in this case the transfer was made to a Magistrate of the Third Class who had no jurisdiction to hold an investigation under Chap. X and that, therefore, the order was bad; he says, that the other portion of the judgment, regarding the power of the Magistrate to transfer is a mere obiter dictum. I find from the judgment, however, that the case was decided primarily on the point that the magistrate, who issues an order under s. 133 of the Code of Criminal Procedure directing a person to show cause before him, must himself hold the enquiry under s. 139A. This view is not an obiter dictum and it is binding on me. I might add that I respectfully agree with this view.
The wording of the latter part of s. 133 is significant. It directs the magistrate, before whom the information is laid to decide, when passing the first order, whether the cause should be shown before him or before some other magistrate of the first or second class. He has the option to decide at that stage whether he will enquire into the matter himself or direct some other magistrate to do it. If the magistrate passing the preliminary order had the power of transfer granted by s. 192, then this provision giving him the option to nominate another magistrate to hold the enquiry would be quite unnecessary. In construing a statute, we must give a meaning to every provision and not presume that a provision is superfluous.
Learned advocate appearing to oppose the Reference further contends that, even if it be held that the magistrate had no power to transfer the proceedings, the error of the magistrate in making the transfer is curable under s. 529 of the Code of Criminal Procedure, as it was done in good faith. I shall now deal with this contention. Section 529 says that, if any, magistrate not empowered by law to transfer a case under s. 192, erroneously and in good faith transfer such a case, the proceedings shall not be set aside merely on the ground of his not being so empowered. The section pre-supposes that the transfer, is made to a magistrate who has the jurisdiction to try the case by a magistrate who had no jurisdiction to make the order of transfer. In the present case, s. 529 does not apply, because the case transferred to a magistrate who had no power to decide the case. As I pointed out before, s. 133 and the following sections make it quite clear that the only person who had jurisdiction to pass orders, either under s. 139A or under s. 137 or s. 138, is the magistrate before whom the person alleged to have been causing obstruction is directed to appear. This conclusion is irresistible, having regard to the provisions of the sections in this chapter. That being so, it must be held in this case that the transfer was made to a magistrate who had no jurisdiction to decide the matter. This being so, the aid of s. 529 cannot be availed of.
Even if it be presumed that the magistrate, had the power to transfer the case by virtue of s. 192 of the Code of Criminal Procedure, nevertheless the order on the first party to prove the public nature of the way before Sri D. Maitra was not a valid order. I have already quoted this order. There is no provision in this Chapter for such an order. The procedure laid down is quite clear. Where a person appears and shows cause and denies the existence of a public pathway, the magistrate shall enquire whether there is any reliable evidence in support of such denial. There is no provision in law to direct the first party, that is to say, the party moving the magistrate, to prove the public nature of the way. This order was entirely without jurisdiction. Again, even if it be held that this order amounts to an order directing the magistrate Sri D. Maitra to proceed in accordance with, the provisions of s. 139A of the Code of Criminal Procedure, the order would still be, bad. I shall assume for the present that the magistrate, had power to transfer the proceedings to another magistrate for disposal under s. 192 of the Code of Criminal Procedure. That section, however, provides for a transfer of the whole case and not for the transfer of a particular portion of the case to another magistrate. Section 192 deals with a transfer, by one magistrate to another of a case. After the transfer, the transferring magistrate is to decide the entire case and dispose of it finally. It gives no power to any magistrate to direct another magistrate to decide a particular issue or point and to send the case back to the transferor court. In this case this is what has been done. Sri D. Maitra, after holding the enquiry under s. 139A of the Code of Criminal Procedure, returns the case to the Sub-divisional Magistrate for orders and the Sub-divisional Magistrate transfers it to another magistrate for disposal. This is a procedure which is entirely against the law; neither Sub-divisional Magistrate nor the magistrate Sri D. Maitra had jurisdiction to deal with the matter in the manner in which they have done. This sort of piecemeal transfer and decision is not permitted by the Code. This view finds support in the principles laid down in the case of Mahabir Singh v. Giribala Dassi. Mr. Roy, opposing the Reference, very frankly stated that s. 192 of the Code of Criminal Procedure does not permit a “piecemeal transfer”.
I hold, therefore, that the order passed by the learned Sub-divisional Magistrate directing Sri D. Maitra to hold an enquiry was an order without jurisdiction. I hold further that there is no provision by which the magistrate Sri D. Maitra could send the case back to the Sub-divisional Magistrate for orders. The whole procedure has been irregular. The Sub-divisional Magistrate should have tried the case, or if he was too busy to try the case he should in his initial order have directed the petitioner to show cause before some other magistrate. Having directed the petitioner to appear before him, he should not have shirked the duty of trying the case himself. This curious and unwarranted procedure of calling for reports and trying the case piecemeal by different magistrate is to be deprecated strongly.
I accept the Reference and set aside the order passed by Sri T.P Ghosh, the Magistrate who finally disposed of the matter. The matter shall be reheard by the Sub-divisional Magistrate himself, who shall proceed from the stage mentioned in s. 139A of the Code of Criminal Procedure according to law.
Reference accepted.
A.C.R.C