P.N. Bakshi, J. - (1.) This is a reference by the Temporary Civil and Sessions Judge, Etawah for quashing an order passed by the Tahsildar -Magistrate IInd Class Bidhuna dated 9 -6 -1970 in proceedings Under Sec. 133 Code of Criminal Procedure.
(2.) One Babu Singh Pradhan filed an application on 1 -7 -1969 Under Sec. 133 Code of Criminal Procedure on the ground that the opposite parties were obstructing the public way by raising construction thereon. A report was called for by the Sub -Divisional Magistrate from the Tahsildar. The report was submitted to the Sub -Divisional Magistrate, Bidhuna. On being satisfied from the report of the Tahsildar, the Sub -Divisional Magistrate passed a conditional order Under Sec. 133 Code of Criminal Procedure. He issued notices to the opposite parties requiring them to remove the obstruction within three days or to appear in his Court to show cause why the said order be not enforced against them. The opposite parties filed their objections. They denied the existence of any public right in respect of the alleged passage land which is said to have been encroached upon by their constructions and they claimed that the land belonged to them. It appears that on 27 -10 -1969 when part of the evidence had already been recorded by the Sub -Divisional Magistrate he passed an order transferring the case to the Tahsildar Magistrate II class, Bidhuna. The case proceeded there and on 9 -5 -1970 the impugned order was passed by the Tahsildar Magistrate. By this order he finally discharged the notice issued to the opposite parties.
(3.) Aggrieved by this order Babu Singh Pradhan filed a revision before the Temporary Civil and Sessions Judge, Etawah, who has made the present recommendation to this Court. The two points which were contended in revision were: 1. That the Sub -Divisional Magistrate, Bidhuna has erred in law in transferring the case to the court of the Tahsildar Magistrate II class, after he had called upon the opposite parties to appear in his Court and had received some evidence of the contesting opposite parties. The contention is that a proceeding Under Sec. 133 Code of Criminal Procedure could only be transferred by the Sub -Divisional Magistrate at the time when he passes the conditional order. The relevant portion of Sec. 133 Code of Criminal Procedure runs as follows: Whenever a District Magistrate, a Sub -Divisional Magistrate or a Magistrate of the first class considers, on receiving a police -report or other information and on taking such evidence (if any) as he thinks fit....such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance,....within a time to be fixed in the order...to appear before himself or some other Magistrate of the first class or second class, at the time and place to be fixed by the order and move to have the order set aside or modified in the manner hereinafter provided. A perusal of the Sec. makes it abundantly clear that it is only at the time when a Magistrate passes the conditional order calling upon the parties to appear in pursuance of such order, that he is empowered to direct such party to appear either before him or before some other Magistrate of the First or Second Class. In other words, the power to transfer the proceedings Under Sec. 133 of the Code of Criminal Procedure can only be exercised by the Sub -Divisional Magistrate at the time when he passes the conditional order directing the parties to appear. At no later stage is the Sub -Divisional Magistrate entitled to pass an order of transfer. In the present case the Sub -Divisional Magistrate, Bidhuna had called upon the opposite -parties to appear in his own Court. He had also recorded some evidence of the contesting opposite -parties. Thereafter he passed the impugned order directing a transfer of the case to the Court of the Tahsildar Magistrate Second Class. To my mind such an order of transfer is wholly without jurisdiction. I am supported in my view by two decisions of this Court. In Bhola v/s. Laxman, 1950 AWR 609 Mr. Justice Raghubar Dayal as he then was held that a Magistrate passing a conditional order Under Sec. 133 of the Code of Criminal Procedure has to exercise his power of sending the case to another Magistrate by stating in the conditional order itself that the person concerned is to appear before the other Magistrate at a certain place and time. He cannot pass such an order at a later stage of the proceedings. He will have no jurisdiction to pass that order and the transferee Court will have no jurisdiction to proceed with the case on account of an order so made. The same view has been expressed by Mr. Justice D.P. Uniyal in the case Hasmat v/s. Radhey Lal, 1966 AWR 655. The view of this Court has also been accepted by a Division Bench of the Rajasthan High Court in Ram Charan v/s. Residents of Sahabad : AIR 1958 Raj. 248. The learned Judges in that case were of the view that Sec. 133 of the Code of Criminal Procedure stands by itself independent of Sec. 192 of the Code. On the scope of Sec. 192 of the Code of Criminal Procedure it was held therein as follows: The competency Under Sec. 192 may be with respect to his powers or with respect to the area for which he may be empowered to act. The restriction does not appear Under Sec. 133. If Sec. 192 were to govern a case Under Sec. 133, these special distinctions could not have found place in that section. Sec. 133, therefore, stands by itself independent of Sec. 192 of the Code. If Sec. 192 were to prevail these special provisions referred to above would become surplusage but the intention of the legislature does not appear to be so. A different view has, however, been taken by the Calcutta and the Patna High Courts. The latest decision of the Calcutta High Court is Mahadeb Karmarkar v/s. Adhir Kumar Karmarkar : AIR 1970 Cal. 169. In that case it was held that: The terms of Sec. 133 of the Code cannot and should not construed as to exclude the general provisions of transfer contained in Sec. 192 of the Code. In view of the decisions of our Court expressing an opinion contrary to that of the Calcutta Court I am not inclined to agree with the decision of the Calcutta case.;