N. C. SHARMA; J. - (1.) THIS is a petition by Shankar Lal and Baldeva Ram under sec. 482, Cr. P. C. for quashing the order of the Sessions Judge, Churu, dated August 14, 1989, affirming the order of the Addl. District Magistrate, Churu dated April 26, 1989, passed on an application under Sec. 141, Cr. P. C. moved by Dr. Surendra Kumar, respondent No. 2.
(2.) THE facts leading to this petition are that on July 29, 1987, Dr. Surendra Kumar made an application under Sec. 133, Cr. P. C. before the Addl. District Magistrate, Churu complaining therein that the carrying on of the trade or occupation of running a saw-mill by the petitioners adjoining the house of respondent No. 2 was injurious to the health and physical comfort of the residents of that locality. He prayed that the petitioners be directed not to run the saw-mill and hot to cause any nuisance. Along with the application, affidavit of Ranveer Singh and some documents issued by the Chief Medical & Health Officer, Churu and the Municipal Commissioner, Churu were also produced by respondent No. 2. THE Addl. District Magistrate examined the matter on July 29, 1987 and considered that the carrying on the saw mill near the house of respondent No. 2 was illegal and it should be removed and the pieces of cut-wood should also be removed. He issued this conditional order requiring the petitioner to resist from running the saw mill and to remove the nuisance and, if they object so to do, to appear. before him on August 5, 1987. THE petitioners appeared before the Addl. District Magistrate and filed their objections on August 12, 1987. It appears that on October 31, 1987, the petitioner filed an application that a compromise has been arrived at between the parties. THE compromise was enclosed to the application in original. It was mentioned that there had not remained then any dispute on account of the compromise and, therefore respondent No. 2 did not want to proceed further with the -proceedings under Sec. 133. Cr. P. C. It was prayed that the proceedings may be dropped. THE compromise appended to the application stipulated that the petitioner would remove the saw-machine from the place of its present installation to a place near the wall of the adjoining school within two months. It was further stipulated that in case the petitioner would not remove the saw-mill, respondent would be entitled to get it removed through the Court. It was also agreed that the petitioner will not stack logs of wood towards the side of the house of respondent No. 2. Lastly, it was provided that in case the saw-mill would not be removed within a period of two months, respondent No. 2 would be entitled to recover Rs. 500/- per month as damages from the petitioners. It appears from the proceedings before the Addl. District Magistrate, Churu of October 31, 1987 that respondent No. 2 and the petitioners were present and both the sides agreed to the compromise. Consequently, the Addl. District Magistrate dropped the proceedings under Sec. 133, Cr. P. C. However, the wood cutting and the saw-machine were not removed by the petitioners. Respondent No. 2, therefore, moved an application on Feb. 28, 1989 before the Addl. District Magistrate, Churu under Sec. 141, Cr. P. C. in this application, it was mentioned that respondent No. 2 had not complied with the terms of the compromise and it was prayed that the saw-machine may be got removed by the Court and the damages stipulated in the compromise may also be realised even by auction of the saw-mill. This application had been decided by the Addl. District Magistrate, Churu on April 26, 1989. By this order the Addl. District Magistrate, giving effect to the compromise, passed an order, that the petitioners should remove their saw-machine by May 7, 1989 from its present place and they should further pay an amount of Rs. 3,000/- as damages from November 1, 1988 to April 1989 to respondent No 2. Further consequential orders to give effect to the above order, were also passed. Aggrieved by the order passed by the Addl. District Magistrate dated April 26,1989, the petitioners filed a revision petition before the Sessions Judge, Churu. The Sessions Judge dismissed the revision by his order dated August, 14, 1989. I have heard the learned counsel for the petitioners and the Public Prosecutor and also the learned counsel for respondent. No. 2. It was urged by the learned counsel for the petitioners that the Addl. District Magistrate, could not have passed the order dated April 26, 1989, which is nothing but an order to enforce the compromise which had been filed by the parties on October 31,1987 before him in Criminal Case No. 5 of 1987 under Sec. 133, Cr. P. C. Sub-section (1) of Section 141 of the Code of Criminal Procedure provides that when an order has been made absolute under Section 136 or Section 138, the Magistrate shall give notice of the same to the person against whom the order was made, and shall further require him to perform the act directed by the order within a time to be fixed in the notice, and inform him that, in case of disobedience, he will be liable to the penalty provided by Section 188 of the Indian Penal Code. Then, Sub-section (2) of the said Section mentions that if such act is not performed within the time fixed, the Magistrate may cause it to be performed and may recover the costs of performing it by various modes provided in that subsection. The Executive Magistrate acquires jurisdiction to act under Sec. 141, Cr. P. C. only if an order has been made absolute under sec. 136 or sec. 138, of the Code. Section 135 of the Code provides that the person against whom such order is made shall perform within the time and in the manner specified in the order, the act directed thereby; to appear in accordance with such order and show cause against the same, section 136 of the Code states that if such perform does not perform such act, or appear in accordance with the show cause, he shall be liable to penalty prescribed in that behalf in Sec. 188 of the Indian Penal Code and the order would be made absolute. In the present proceedings under sec. 133, the petitioners had appeared and showed cause and, therefore, the order under Sec. 133, Cr. P. C. did not become absolute under Sec. 136. Another provision under which an order under Sec. 133 becomes absolute is contained in Sec. 138 (2) of the Code. No such absolute order under Sec. 136 or Sec, 138 (2) was passed by the Addl. District Magistrate. Proceedings under section 133-The Addl. District Magistrate simply dropped the proceedings under Sec. 138 solely on account of the reason that the parties had filed a compromise and had prayed that the proceedings be dropped. It is very clear that as in a proceeding under Sec. 133 of the Code, public rights are involved, the matter must be determined by legal evidence and could not be made a subject of compromise by the disputing parties. The law does not contemplate that the Magistrate should act as an arbitrator. Sec. 133 of the Code is imperative and mandatory. It was incumbent upon the Addl. District Magistrate to take evidence in the matter as in a summons case and thereafter he should have applied his mind whether he should pass an order absolute under sub-section (2) of Sec. 138 of the Code or should drop the proceedings under Sub-section (3) of Sec. 138. The Addl. District Magistrate, Churu had no jurisdiction to drop the proceedings under Sec. 133, Cr. P. C. solely on account of the fact that the parties had filed a compromise and therefore, the respondent No. 2 did not want to proceed further with the proceedings. It is in fact, not only the order of the Add!. District Magistrate dated April 26,1989 and the order of the Sessions Judge, Churu dated August 14,1989 affirming the said order of the Addl. District Magistrate that are wrong, but also the earlier order of the Addl. District Magistrate Churu dated October 31,1987 dropping the proceedings under Sec. 133, Cr. P. C.
(3.) IN order to do justice to the parties, and to prevent the abuse of the process of the Churu, it is necessary not only to quash the' orders challenged by the petitioners in this petition, but also to quash the order of the Addl. District Magistrate, Churu dated October 31, 1987, dropping the proceedings under Sec. 133, Cr. P. C. and to direct him to further proceed with the Case No. 5/1987 of his Court under Sec. 133, Cr. P. C. and to decide it in accordance with law and keeping in view the provisions contained in Sec. 138 of the Code of Criminal Procedure and other provisions relevant thereto. I, therefore, allow this petition and set aside the order of the Sessions Judge, Churu dated August 14, 1989 affirming the order of the Addl. District Magistrate, Churu dated April 26, 1989. I further set aside the order passed by the Addl. District Magistrate on October 31, 1987 in case No. 5/1987 of his Court dropping the proceedings under Sec. 133. Cr. P. C. and direct him to proceed further with the said case No. 5 of 1987 under Sec. 133, Cr. P. C. in accordance with the provision contained in Secs. 133 to 143 of the Code and more particularly Sec. 138. The parties are directed to present themselves before the Addl. District Magistrate on 11th December, 1989. Respondent No. 2 is hereby directed to refund the amount of Rs. 3,000/-, which had been recovered by him from the petitioners. .;