UPLETA MUNICIPALITY Vs. SOBHAGCHAND PANACHAND
HIGH COURT OF GUJARAT
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(1.) THIS is a revision application against an order passed by the District Magistrate, Rajkot, in a proceeding Under Section 133, Cri. Pro. Code, in which he took the view that the Taluka Magistrate, Upleta, was not a competent Magistrate Under Section 133, Cri. P. C. He vacated the order passed by the said Taluka Magistrate, remanded the case to the Sub-Divisional Magistrate, Gondal, and directed the latter to examine the case on merits and take action as per the provisions of law. He further ordered that till the time the Sub-Divisional Magistrate, Gondal, decides the case, the Municipality of Upleta shall not utilise the structure in dispute as latrines of for any other purpose.
(2.) UNDER Section 133, Cri. P. C. proceedings cannot be initiated before a Taluka Magistrate. Proceedings can, however, be initiated before a Sub-Divisional Magistrate, and when the proceedings are initiated before the Sub-Divisional Magistrate, he may pass a conditional order requiring the person causing an obstruction or nuisance to remove such obstruction or nuisance etc. , and if such person objects so to do to appear before himself or some other Executive Magistrate at a time and place to be fixed by the order and move to. have the order set aside or modified in the manner provided in the Cri. P. C. The Sub divisional Magistrate before whom the proceedings were initiated failed to comply with the provisions of this section, as he did not pass a conditional order. It is only if a conditional order is passed Under Section 133, Cri. P. C. that the person against whom an order is passed can appear before the Sub-Divisional Magistrate or some other Executive Magistrate as mentioned in the order of the Sub-Divisional Magistrate. As this has not been done, the District Magistrate was quite right in vacating the order of the Taluka Magistrate. The Taluka Magistrate can function only if a conditional order is passed by the Sub-Diyisiona,l Magistrate.
(3.) UNDER Sub-section (2) of Section 438, Cri. P. C. in the case of proceedings in respect of an order made Under Section 133, Cri. P. C, which is not one of the sections referred to in Sub-section (1) of Section 438-A, Cri, P. C, the District Magistrate can exercise any of the powers conferred on a Court of appeal by Sections 423, 426, 427 and 428, Cri. P. C. He was, therefore, acting under the provisions of Section 438 (2), Cri. P. C, and the District Magistrate therefore vacated the order passed by the Taluka Magistrate. But he cannot order that till the time the Sub-Divisional Magistrate, Gondal, decides the case the Municipality of Upleta shall not utilise the structure in dispute as latrines or for any other purpose. Such an order could not be passed even Under Section 133; Cri. P. C. Even under that section a conditional order can be passed requiring the person against whom an order is passed to do any of the acts mentioned in that section or if he objects so to do to appear before himself or some other Executive Magistrate at a time and place to be fixed by the order and move to have the order set aside or modified in the manner provided in the section.;
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