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Criminal Revision No. 955 of 1975, decided on 25th May 1976.

-- S. 133-Public nuisance, removal of-Proceedings under S. 133 though of a civil nature and person proceeded against a respondent and not accused yet a conditional order permissible against such person and such person could be asked to explain why conditional order be not made absolute-Orders passed under S. 133-Orders in criminal -proceedings-Person failing to appear after due service of summons -Held, coercive measures could be adopted for his appearance in Court for taking further proceedings in matter-Petitioner, however. never served with summons and summons also not received back-Bailable warrants of arrest against petitioner, held, could not be issued parti cularly in absence of circumstances showing avoidance of service of summons by petitioner.

The facts of this case are as follows:-

Raja Mohammad Ashraf moved the District Magistrate for proceedings under section 133, Cr. P. C. against the petitioner, etc. The petition was entrusted by the D. M. to Ch. Zafar Aaiz, M. I. C., Jhelum, who summoned the petitioner along with others and on their failure to appear issued bailable warrants of arrest vide order dated 23-6-75. This order has been called in question in the present revision petition.

The proceedings are forwarded for revision on the following grounds:

1. The learned counsel-for the petitioner as well as the P. P. have been beard and record perused. The contention of the learned counsel for the petitioner is perfectly correct and is not opposed by the P. P. that under section 133, Cr. P. C. the petitioner and his companions who were respondents in the original petition were only to be summoned and if they had not appeared then they could not be ordered to be arrested to be produced before the learned Magistrate. The proceedings are of civil nature and only information of the proceedings is to be given to the parties affected thereby. If a party affected does not want to contest then the Magistrate could not force the attendance by issuing warrants of arrest.

2. I, therefore, conclude that the order of summoning the petitioner, etc. in proceedings under section 133, Cr. P. C. through warrants of arrest is clearly illegal. Accordingly, I recommend to the High Court for quashment of the order of the learned Magistrate.

Arshad Mobin for Petitioner.

S. Maybool Hussain Shah for A: G. for the State.

Date of hearing : 6th April 1976.

This is a reference by the Sessions Judge. Jhelum recommending quashment of the order dated 5-6-75 passed by Ch. Zafar Aziz, Magistrate, First Class, Jhelum issuing bailable warrants of Pervaia Kayani petitioner in the proceedings drawn up against him and others under section 133, Cr. P. C. on the complaint of Raja Muhammad Ashraf (respondent).

2. The petitioner was alleged to have blocked a public way. There fore, the matter wag put up before a Magistrate calling for action under section 133 of the Code of Criminal Procedure. The Magistrate summoned the petitioner, but he failed to appear before him despite service. The Magistrate then issued his bailable warrants. Aggrieved icy this order, the petitioner filed the revision petition before the learned Sessions Judge, which is now before me.

3. It was contended by the petitioner and conceded by the learned counsel for the State that the impugned order was without jurisdiction because in the present proceedings the Magistrate was not competent to issue bailable warrants of the petitioner on his failure to appear after service of summons. The Magistrate could have proceeded to make a conditional order in the absence of the petitioner. Moreover, the proceedings under section 133 of the Code of Criminal Procedure are of a civil nature.

4. I have considered toe matter. On perusal of the trial Court proceedings I find that the petitioner .was never served with the summons and the summons bad also not been received back; yet his bailable warrants A of arrest were ordered to issue end there was also nothing to indicate that the petitioner was avoiding the service of summons. It appears that this aspect of the case was not put before the learned Session Judge by either side, therefore, it skipped his notice. It was also not urged before me.

However, had them been a proper service of the summons and the petitioner had failed to appear in Court without showing a reasonable cause, then his warrants could have been issued as provided under section 90 of the Criminal Procedure Code. No doubt, the proceedings under section 133 ; Cr. P. C., are of a civil nature and the person proceeded against is respondent and not an accused, h. can even appear as his own witness True, in these proceedings a conditional order against a person accused of having infringed a public right can be made and he can be asked to explain why the order should not be made absolute. Yet all this would not mean that whenever the Court wants to examine him before proceeding further e in the matter, it cannot do so A plain reading of section 133, Cr. P. C. would show that there is no bar to summon him. 'The orders passed under this section are orders in a criminal proceeding and if the person complained against fails to appear after due service of summons, coercive measures can be adopted against him for his appearance in Court before taking further proceedings in the matter. I am of the view that the reference is not based on a sound proposition of law. The revision petition would I, however, still succeed, because the petitioner was not served with the summons) and his bailable warrants were issued without any justification. The impugned order is, therefore, set aside. The record of the case be sent back to the trial Court with a direction to conclude the proceedings within a month from the date of the receipt of this order.

S. A. H. Orders accordingly.

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