Mahadeo Lal And Another v. Hossaini Pandey And Others Oppesite Party.

1. This rule is directed against the order of the Magistrate made on 13th June 1929, as a result of an award by a Jury under Chap. 10, Code of Criminal Procedure. He ordered the petitioners to remove an encroachment being a wall on plot No. 234 on or before 27th June 1929. Execution of this order was stayed on 27th June 1926, till the disposal of an appeal which was pending before the Sessions Judge.

2. I very much regret to have set aside the order of the Magistrate having regard to the fact that although there was irregularity in the proceedings, it is perfectly clear to me that so far as it was possible, the petitioner waived this irregularity. The first contention is that the Jury which was summoned was appointed in contravention of the provisions of Section 138 of the Cr PC. That section provides that:

“On receiving an application under S. 135 to appoint a jury, the Magistrate shall forthwith appoint a jury consisting of an uneven number of persons not less than five, of whom the foreman and one-half of the remaining members shall be nominated by the Magistrate……”

3. In this case the Magistrate nominated the foreman, but stated that the parties would nominate the remainder and that in fact was done; two were nominated by the petitioners and two were nominated by the opposite party. It is contended that this is an irregularity by reason of the provisions of Section 537 of the Cr PC. It is to be noticed that in S. 537 the errors and omissions which are cured by that section are stated to be in:

“the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial”

4. And then in subpara, (c) mention is made of an omission to revise a list of jurors or assessors in accordance with S. 324; and apart from the mention of a misdirection to the jury in subpara, (a) there is nothing in the whole of this section about the appointment or nomination of a jury. Now quite clearly the nomination of a jury is a nomination of the Court, which has to try the case and it would seem that irregularity which regard to that matter is an irregularity which goes to the root of the proceedings. Therefore, in my judgment it is doubtful whether in any event the provisions of Section 537 of the Cr PC, could cure the irregularity in this respect. In connexion with this point the decision in Upendra Nath v. Khitish Chandra (1) is relied upon. In that case similar irregularity in the appointment of a jury was held to be incapable of making a legally binding award. However, having regard to the other point in the case it is unnecessary for me to say whether as a matter of law the irregularity in the appointment of the jurors in the case was such as could not be cured by Section 537 of the Cr PC. The other point in the case is that the Magistrate did not comply with the provisions of Section 139-A of the Cr PC. In this connexion I might mention that if is clear that the petitioners the moment they were summoned to come before the Magistrate asked for a jury, and, therefore, it seems to me that there was a clear waiver of their rights under S. 139-A. But I have the gravest doubt whether there can be a waiver of a mandatory provision such as is contained in S. 139-A of the Code. The section provides that:

“where an order is made under S. 133 of the Code,…… 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, channel or place, and, if he does so, the Magistrate shall, before proceeding under S. 137 or S. 138, inquire into the matter.”

5. Now there was no inquiry by the Magistrate. If there had been it might have resulted in the necessity of proceeding under the second sub-section of S. 139-A. As I have said, there was no inquiry and therefore, if is idle to speculate as to what the result of such inquiry would have been.

6. It is contended that in the petitioners' written statement the question of whether the land was private property or public land was not disputed, that is to say, that it was admitted that it was a public land and the fact desired that there had been an encroachment. In my judgment I do nob think that this contention is supported by a perusal of the written statement; but in any event that matter is immaterial, because the section quit clearly means that the party against whom the order under S. 133 is directed is under no necessity of contending that it is his private land, but on the other hand it is obligatory on the part of the Magistrate to inquire whether that in fact is the contention of the party or not.

7. In these circumstances the award of the jury is set aside. The matter will proceed from the stage in which the proceedings had reached on the date when the petitioner first came before the Magistrate after being served with the order under S. 133, and the Magistrate will determine the matter according to law.

V.B/R.K

8. Award set aside.