Decided on September 27,1968

KESAVAN NAIR Respondents


- (1.) This matter has come up before us with an order of reference passed by our learned brother Mr. Justice Raghavan. That order reads as follows: "The Executive First Class Magistrate, Trivandrum started proceedings under S.133 of the Code of Criminal Procedure. Notice of the preliminary order was given to the petitioners; and they filed their objections before the Magistrate. However, they did not produce evidence in support of their objections, which they were bound to do under S.139A of the Code. Then, the Magistrate confirmed the preliminary order without taking evidence. In revision the said order is being challenged. The counsel of the petitioners draws my attention to the decision of this Court in Ambi v. State of Kerala ( 1961 KLT 617 ) by Anna Chandy J. laying down that under S.137 'the conditional order cannot be made absolute without the party (complainant),being called upon to substantiate the allegation, which necessitated the passing of the conditional order by producing legal evidence'. I am inclined to agree with this. The counsel of the first respondent, the petitioner before the Executive First Class Magistrate, draws my attention to another decision of this Court by Madhavan Nair J. in Balan v. State of Kerala ( 1966 KLT 1100 ). The headnote of the case reads: 'S.137 contemplates proof not of reasonableness and propriety of the conditional order passed but of its unreasonableness and impropriety. If evidence therefore is not forthcoming the Section requires the Magistrate to make the conditional order absolute. In other words it is for the person against whom a conditional order has been made to convince the Magistrate, that the conditional order was not reasonable or proper in the facts and circumstances of the case and not for the other party to lead evidence to satisfy the Magistrate that his conditional order was reasonable and proper.' These two decisions by two learned Judges of this Court appear to conflict, one taking the view that in any enquiry under S.137, the complainant must adduce evidence and the other taking the view that in such a proceeding, the respondent should produce evidence against the preliminary order and the complainant need produce evidence only to rebut. Because of this conflict, I place this case before a Division Bench for an authoritative decision dissolving the tie."
(2.) This revision raises the question whether even without calling on the party at whose instance a conditional order was passed under S.133 of the Criminal Procedure Code to let in evidence to substantiate his allegations that order can be made absolute as soon as the person against whom the order was passed defaults to let in evidence to substantiate his objections. Our learned brother Mr. Justice Madhavan Nair in Balan v. State of Kerala 1966 KLT 1100, held that it could be done. In Ambi v. State of Kerala 1961 KLT 617, Anna Chandy J. took the opposite view and that gains support from the decisions in Sankaran v. Kunjukrishnan, 1968 KLT 859 , Thomas Varkey v. Idiculla John ILR 1951 TC 123 , In re Ramsing 1900-II-Bombay Law Reporter 818, Lal Behari v. Jatindra Chandra AIR 1949 Cal. 37 , Rameswar v. Emperor AIR 1939 Bom. 92, Attar Singh v. Hari Singh 28-1927 Criminal Law Journal 60, Jagan Nath Prasad v. Emperor 28-1927 Criminal Law Journal 510, Akhoy Sardar v. Lalchand Sarkar 28-1927 Criminal Law Journal 859 and Srinath Roy v. Anudai Halder ILR 24 Cal. 395.
(3.) Madhavan Nair J. relied upon the language of S.137(2) and (3) to reach his conclusion. Those Clauses in S.137 speak of the Magistrate's obligation to stop all further proceedings if he is satisfied that the conditional order is not reasonable and proper and to make that order absolute if he is not so satisfied. Prima facie it would appear from it that once the conditional order is passed the burden is on the person against whom that order was directed to show that it was not reasonable and proper and that if he does not adduce evidence to substantiate it that order has to be made absolute. In that view the observation in Balan v. State of Kerala 1966 KLT 1100 that after the conditional order was passed the satisfaction required on the part of the Magistrate was of the unreasonableness and impropriety of the order and the conclusion that in the absence of evidence on the side of the party against whom the order was passed the order could be made absolute without taking the evidence of the party at whose instance that order was passed, if we may respectfully say so, may be quite justified. But those provisions in S.137 do not stand isolated. They have to be read along with the remaining provisions in the same Section and the provisions in the remaining Sections which deal with Public Nuisances and if so read it is clear that even after the party against whom the conditional order was passed defaulted to let in evidence to substantiate his objections that order could not be made absolute without taking the evidence of the other party at whose instance the proceedings were started.;

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