1. In this revision, the petitioner who is party No. 1 in 133, Cr.P.C. proceedings instituted by the Sub-Divisional Magistrate, Haveri, in Case No. MAG SR 2/81-82, on the file of his Court, has sought to challenge the legality and correctness of the order dated 20-6-1981 passed by him chilly-pounding machine installed by him at Badagi in Dharwad District.
2. One of the contentions raised by the petitioner is that the order under revision passed by the Magistrate is illegal and without jurisdiction, because having called upon the parties to appear before him on 30-6-1981, by his preliminary order, he could not have made any modification in the preliminary order without enquiring into the case as required under the law and the order under revision, therefore, is liable to be set aside. It is also submitted that the proceedings initiated are also liable to be quashed, the same being not in accordance with law.
3. It appears, the contention is well founded. The learned Sub-Divisional Magistrate proceeded to make preliminary order, as provided under sub-section (1) of S. 133 Cr.P.C. on 1-5-1981, on the report made by the Tahsildar, Badagi, after some preliminary enquiry, as follows :
'In view of the facts reported by the Tahsildar, Badagi and in exercise of the powers vested in me under Section 133 of Cr.P.C., I. M. Eraiah, Sub-Divisional Magistrate, Haveri, Sub-Divn. Haveri, hereby pass this conditional order to stop the operation of the machine temporarily for a period of one month from now on pending detailed enquiry.
'Further, the hearing of this case is fixed on date 30-5-81 at 11 a.m. in this office. He is further directed to be present on the day. Notices to be issued to all the complainants.
Given under my and and seal of this Court this day the 30th April, 1981.'
In pursuance of the said preliminary order made by the Sub-Divisional Magistrate, on 30-5-1981 itself, the petitioner who was party No. 1 in the proceedings before the Sub-Divisional Magistrate, appeared personally and through his counsel and the Sub-Divisional Magistrate thereafter proceeded to adjourn the case to 8-6-1981. It is thereafter without any enquiry in the matter he proceeded to make the impugned order on 30-6-1981. The proceedings sheet maintained by the Sub-Divisional Magistrate do not disclose that the case was at all posted on 20-6-1981. The case, it appears, was called on 8-6-1981 and adjourned to 22-6-1981. While Section 136, Cr.P.C. provides that if such person who is called upon to appear does not perform such act or appear and show cause, 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, Section 138 provides, if the person against whom an order under Section 133 is made appears and shows cause against the order, the Magistrate shall take evidence in the matter as in a summons case and if the Magistrate is satisfied that the order, either as originally made or subject to such modification as he considers necessary, is reasonable and proper, the order shall be made absolute without modification or, as the case may be, with such modification, and if the Magistrate is not so satisfied, no further proceedings shall be taken in the case. Though it is permissible for the Magistrate, after making the preliminary order, to make the order absolute when he appears and shows cause, but when he appears and shows cause, it is obligatory on the Magistrate to record evidence and then after having satisfied that the order, either as originally made or subject to such modification as he considers necessary, is reasonable and proper, to make the order absolute with or without modification, as the case may be. Here in the case on and, when the party had already appeared and an opportunity was given to the petitioner to show cause, unless the Magistrate could proceed under Section 136, Cr.P.C., he could not have made such an order modifying the earlier order made by him, whether it is a case of public nuisance coming under clause (a) of sub-section (1) of S. 133 or a case governed by the conduct of any trade or occupation coming under clause (b) of sub-section (1) of S. 133. This Court, in the case of State v. Mahadevappa, 1964 (1) Cri LJ 413 : (AIR 1964 Mys 52), dealing with a case on nuisance and obstruction in the public place as held that there is no provision in the Cr.P.C. authorising the Magistrate either to amend the preliminary order or to pass any order except in accordance with the preliminary notice. The only power conferred on the Magistrate is to make the preliminary order absolute or nothing more. He cannot modify the preliminary order while passing the final order. All that the Magistrate who has passed the preliminary order can do under Section 137 is to either drop further proceedings or to make the preliminary order absolute. That also equally applies to the case of this nature were the proceedings are instituted under clause (b) of the sub-section (1) of S. 133, Cr.P.C. After the preliminary order is made, that could be modified or affirmed, as the case may be, on inquiry under Section 136, Cr.P.C. When the Magistrate was still making the inquiry and adjourned the case, behind the back of the party and without notice, it was not justified for the Magistrate to modify the order.
4. The order under revision being bad in law, is liable to beset aside. Since the learned Magistrate has not followed the procedure properly as provided under Section 133, Cr.P.C. and the preliminary order itself made by him is not in conformity with the provisions of clause (ii) of the later part of sub-section (1) of S. 133, Cr.P.C., the proceedings are also bad in law and, therefore, liable to be quashed.
5. In the result, forte reasons stated above, the order under revision is set aside and the proceedings instituted by the Magistrate are quashed. It is however made clear that if the Magistrate considers the action under S. 133, Cr.P.C. is necessary, he is still at liberty to initiate proceedings as required under law.
6. Revision allowed.