Decided on June 06,1952

BHURAMAL Appellant
BABULAL Respondents

Referred Judgements :-



- (1.)THIS is an application in revision by Bhuramal who filed an application before the Sub Divisional Magistrate, Fatehpur, under sec. 133 Cr. P. C. on the ground that a certain cinema, which was being conducted by the opposite party, Babulal, in the heart of the town of Fatehpur, was being worked with a second-hand engine which created a good deal of noise and also emitted smoke which was injurious to the health of the people and comfort of community. The learned Magistrate made a conditional order under sec. 133 Cr. P. C. and called upon the opposite party to appear before him and move to have the order set aside or modified in the manner required by the Code. The opposite party appeared and showed cause on the 18th July 1949. After this an interim order was made by the learned Magistrate restraining the opposite party from giving cinema shows during the inquiry. But this order was vacated in revision by this Court. After the case went back to the court there was an application for transfer and the case was transferred to the court of the City Magistrate, Sikar. That court having been abolished, the case came back again to the court of the Sub-Divisional Magistrate, Fatehpur. 6th of August 1951 was fixed for the evidence of the complainant. On that date, however, no evidence was recorded but an application was filed by the opposite party that his cinema-shows had been stopped under the orders of the court and so there was no longer any nuisance; the proceedings may therefore be dropped. The Magistrate fixed the 9th August 1951 for arguments. On that date he made the order, which is the subject of this revision and by which the learned Magistrate dropped the proceedings saying that as the cinema-show had been stopped under orders of the court, and there was no nuisance any further, the proceedings be dropped. If there was any nuisance in future the complainant could file another application. Dissatisfied with this order the applicant Bhuramal went in revision to the court of the Sessions Judge, Sikar, but his revision was dismissed. He has applied in revision to this court,
(2.)THE opposite party is not present in spite of notice. I have heard Mr. A. N. Banerjee on behalf of the applicant and have also gone through the record. In proceedings under sec. 133 Cr. P. C. the District Magistrate, the Sub-Divisional Magistrate or a Magistrate of the First Class, first makes a conditional order requiring the person causing obstruction or nuisance etc. , if on receiving a police report or other information and on taking such evidence, if any, as he thinks fit, he considers it necessary to make such an order. In case, he makes such conditional order he is required to order the person, against whom the complaint is made to appear before himself or some other Magistrate of the First or Second Class; 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 Code. If the person, against whom the conditional order is made, appears and shows cause against the order, the Magistrate is required to take evidence in the matter as in a summons case. This is provided by sec. 137 (1) Cr. P. C. Under sub-sec. (2) to sec. 137 if the Magistrate is satisfied that the order is not reasonable and proper, no further proceedings need be taken in the ease. Under sub-sec. (3) if the Magistrate is not so satisfied, the order shall be made absolute. As the opposite party appeared and showed cause against the conditional order in the present case the Magistrate was bound under sec. 137 to take evidence in the matter as in a summons case. THE applicant was ordered to produce his evidence on the 6th August 1952. His evidence was, however, not recorded, because an application was filed by the opposite party that cinema had been stopped and there was no danger of nuisance any further. This application by the opposite party did not obviate the necessity of recording evidence of the complainant. THE Magistrate could make an order either under sub-sec. (2) or sub-sec. (3) to sec. 137 Cr. P. C. only after compliance with the provisions of sub-sec: (1) of sec. 137. THE learned Magistrate made the order under sub-sec. (2) without following the mandatory provisions of sub-sec. (1) of sec. 137. THE Magistrate says in the order that the applicant admitted that there was no nuisance on or about the date of the Magistrate's order i. e. , 9th August 1951. THE nuisance was however stopped according to the allegations in the opposite party's application itself on account of the stoppage of the cinema-shows under the court's order. THEre was no guarantee that as soon as the proceedings were dropped the danger of nuisance would not recur. THE learned Magistrate therefore was not justified in dropping the proceedings without recording the evidence under sec. 137 (1) Cr. P. C. THE provisions of sec, 137 are quite clear but if any authority is needed, I am supported in my interpretation of the said section by a Division Bench ruling of the Calcutta High Court in the case of Shew Khelaon Ram Kalwar vs. Nayan Bapri (1) (A. I. R. 1920 Cal 834. ). It was held that "the provisions of sec. 137 are imperative. Before a Magistrate can make an order under clause (2) of that section, dropping a proceeding started under sec. " 133 of the Code, he must take evidence in the matter as directed by Clause (1) of sec. 137. "
There is another ruling of a Division Bench of the same High Court reported in Gangaprasad vs. Khitish Chandra Sanyal (2) (A. I. R. 1929 Cal. , 21.) in which the Magistrate had cancelled the conditional order under sec. 133 on a perusal of the statements of the parties without taking any evidence. It was held that the Magistrate had not followed the provisions of Part 4, Chapter 10 of the Criminal Procedure Code and that the order could not therefore be allowed to stand. I am unable to sustain the order made by the learned Magistrate.

The application for revision is allowed, the order of the learned Magistrate dated the 9th August 1951 dropping the proceedings is set aside and the case is remanded to the court of the Sub-Divisional Magistrate, Fatehpur, for disposal in accordance with law. .

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