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Criminal Revision No. 326 of 1957, decided on 31st May, 1958

, S. 136‑Person pro ceeded against showing cause‑Magistrate should not make order absolute but proceed to take evidence under S. 137. Cr. P. C.

Where the person proceeded against appears and show cause against the interim order, the Magistrate should not proceed to make the latter order absolute but should act under S. 137, Cr. P. C. which provides that he should take evidence in the matter as in a summons case, and if he is satisfied that the order is not reasonable, he should order that no further proceeding should be taken in the case, and if he is not satisfied, he should make the order absolute.

An order making the interim order absolute without taking any evidence contravenes S. 137, Cr. P. C. and is illegal.

, S. 139‑A (I) Magistrate not complying with provisions and making order absolute ‑Order illegal‑Right place for provision of S. 139‑A is immedi ately after S. 135, Cr. P. C.

Date of hearing: 28‑4‑1958.

This is an application under ss. 435 and 439 Cr. P. C., praying that the order dated 1‑7‑57, passed by the Mukhtiarkar and 1st Class Magistrate, Nawabshah, under S. 136, Cr. P. C. ordering that the applicant should stop working this flour mill situated in survey No. 177 in the town of Nawabshah be set aside.

The applicant has established his flour and saw mills after obtaining permissions from the Assistant Custodian of Evacuee Property Nawabshah, the building being an evacuee property. He had also obtained the requisite permission from the Chief Officer of the Nawabshah Municipality for the purpose. The applicant ran these mills peacefully till 25‑5‑57, when he was served with a notice, issued by the Mukhtiarkar and 1st Class Magistrate, Nawabshah, on the application of one Syed Zakir Ali, to show cause why the mill should not be stopped and dismantled. The applicant submitted his reply to the above notice on 30‑5‑57. Again, on 13‑6‑57, the applicant was served with an order directing him to stop functioning the said mills with immediate effect, and to remove the same, and to show cause within 7 days, why this interim order should not be made absolute. The applicant showed cause on 18‑6‑57 stating that he had installed the mills after obtaining the requisite permissions from the Custodian and the Chief Officer of the Municipality, and that about that time, one Hakim Muhammad Azim had made an application against the installation of the saw mills, and that on that application, the then Collector had visited the site, and held that no harm could be done by the running of the mills. He has also stated that the present complainant Zakir Hussain did not object for full one year during which the mill had run. He had also stated that during this full one year of the running of the mills, no damage of any kind had been done to any building in the locality. Thereafter nothing was done by the learned Magistrate till 1‑7‑57 when he, purporting to act under S. 136 Cr. P. C. made the above condi tional order absolute. Against this order. the applicant filed an application before the District Magistrate of Nawab Shah under S. 435/438, Cr. P. C. but the District Magistrate, without passing any order on that application, sent the papers back along with that application, to the learned Magistrate for disposal. Thereafter, the learned Magistrate threatened to dismantle the mills and take action against the applicant under S. 188, P. P. C. The applicant has therefore come to this Court with an application under Ss. 435 and 439, Cr. P. C.

I have heard the learned A. A. G. for the State. The counsel for the applicant was absent when called.

I have gone through the relevant papers and I find that the learned Magistrate could not pass an order under S. 136, Cr. P. C. After the conditional order is passed by the Court under S. 133, Cr. P. C., the person to whom the order is issued, has to act under S. 135, Cr. P. C. which, inter alia, provides that he shall either perform the act directed by the conditional order, or appear before the Court in accordance with such order, and either show cause against ‑the same or apply to the Court to appoint a Jury to try whether the same is reasonable and proper. It appears from the record that the applicant objected to the conditional order, and appeared before the Magistrate, and showed cause against the same. This having been done, action under S. 136, Cr. P. C. would be uncalled for and without jurisdiction. That section provides that

"If such person does not perform such act or appear and show cause or apply for the appointment of a jury as required by S. 135, he shall be liable to the penalty prescribed in that behalf in S. 188 of the Indian Penal Code, and the order shall be made absolute."

Thus no action could be taken against the applicant under S. 136 Cr. P. C. in view of the fact that the applicant did appear and showed cause against the order. The Magistrate should have therefore acted under S. 137, Cr. P. C. which provides that he should take evidence in the matter as in a summons case, and if he is satisfied that the order is not reasonable, he should order that no further proceeding should be taken in the case, and if he is not satisfied, he should make the order absolute. The learned Judge, as it appears from the record, without taking any evidence in the matter, has made the order absolute. Obviously therefore, the B order having been passed in contravention of the provisions off S. 137, is illegal, and therefore must be set aside.

The learned Magistrate has also acted illegally in not comply ing with the provisions of S. 139‑A, Cr. P. C. That section, inter alia, provides that the Magistrate shall on the appearance before him of the person against whom the order (under S. 133, Cr. P. C.) was made, question him as to whether he denied the existence of any public right in respect of . . . or place, and, if he does so, the Magistrate shall, before proceeding under S. 137 or S. 138, inquire into the matter." The learned Magistrate has not questioned the] applicant as to whether he denied the existence of any public right in respect of the place where the mills are situated, and since he had to proceed under S. 137 Cr. P. C., only after making inquiry as contemplated by the provision of S. 139‑A (1) of the Cr. P. C., the action taken by the Magistrate becomes illegal.

From the scheme of the sections in Chapter X, it appears that S. 139‑A has not been given its proper place. Its place lies imme diately after S. 135, Cr. P. C. Subsection (1) of section 139‑A provides that where an order is made under S. 133 for the purpose of preventing obstruction, nuisance or danger to the public in the use of any way, river, channel or place, 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 water, river, channel or place, and if he does so, the Magistrate shall, before proceeding under S. 137 or, 138 or S. 139, inquire into the matter. The perusal of this sub section itself shows that before any action can be taken under S. 137 or 138 Cr. P. C., action under S. 139‑A has to be taken. Any way, wrong place assigned to this section, does not alter the position.

For the reasons stated above, I allow the application and set aside the order of the Mukhtiarkar and 1st Class Magistrate, Nawabshah.

A. H. Application allowed.

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