1. This is a reference under Section 438 Cr. P. C, made by the learned First Additional District and Sessions Judge, Dharwar, recommending that this Court may be pleased to quash the order made by the learned Sub Divisional Magistrate, Gadag Division, Gadag, in Mis. Case No. 8 of 1958 on his file as the said order contravenes the provisions of Section 137 Cr. P. C.
2. Misc. Case No. 8/58 is a proceeding under Section 133 of the Criminal Procedure Code. The preliminary order passed in that case reads thus:
Shri. Mahadevappa Goudappa Gudi of Korrgal Ori Gadag. Whereas it has been reported to me that you have put up a new building in toe open space tothe north of C. T. S. No. 25/2 of Gadag belonging to one Shri Basappa Mallappa Koppaud' of Gadag with the result that the walls of the building in C. T. S. No. 2155/2 are likely to collapse at any time on account of the heavy load, and likely to cause injury to the life of the neighbouring citizens.
Now therefore, I Shri S.S. Moulvi, Sub-Divisional Magistrate, Gadag Division, Gadag, do hereby direct and require you to forthwith remove the said building so as to prevent injuries to the inmates of the neighbouring houses before 2-6-1958 or appear before me on 2-6-58 at Gadag at 11.00 A. M. to show cause why this order should not be made absolute and final.'
The final order made in that case reads thus:
'I therefore, direct that the preliminary order should be made final and the opponent should be directed to remove the wall about 3' in height and 11/2' in breadth which has been constructed on northern wall of the applicant's house. The bamboos and beams need not be removed as they do not render the wall dangerous.'
Despite the fact that the learned Magistrate has stated in the final order that the preliminary order has been made final, there is no gainsaying of the fact that he had substantially modified the preliminary order. The question for decision is whether he was competent to pass that order.
3. Under Section 133(1) Cr. P. C. 'whenever a District Magistrate, a Sub Divisional Magistrate or a Magistrate of the first class considers, on receiving a police report or other, information and on taking such evidence (if any) as he thinks fit, that any unlawful obstruction or nuisance should be removed from any way, river or channel which is or may be lawfully used by public or from any public place ...... such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance ...... within a time to be fixedin the order.'
Section 134 provides for the Service of the notice referred to in Section 133. Section 135 says:
'The person against whom such order is made shall -- (a) perform, within the time and in the manner specified in the order, the act directed thereby; or (b) appear in accordance with such order and either show cause against the same, or apply to the Magistrate by whom it was made of appoint a jury to try whether the same is reasonable and proper.'
It is not necessary to refer to Section 135. The section that is important for our present purpose is Section 137 which reads as follows:
'(1) If he appears and shows cause against the order, the Magistrate shall take evidence in the matter as in a summons case.
(2) If the Magistrate is satisfied that the order is not reasonable and proper, no further proceedings shall be taken in the case.
(3) If the Magistrate is not so satisfied, the order shall be made absolute.'
Under Section 135(b) it is open to the jury to try the issue whether the order made is reasonable and proper. But so far as the Magistrate who has passed, the preliminary order, is concerned, all that he can do under Section 137 is to either drop further proceedings or make the preliminary order absolute. There is no provision in the code 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 and nothing more. This view of the law;appears to be obvious from the plain language of Section 137. The view taken by me receives support from various decided cases.
In this connection I may refer to the decision in Juje D'Silva v. Kashmir D'Silva AIR 1943 Mad 335; wherein it was laid down that a Magistrate sitting alone under Section 137 has no jurisdiction to modify the original order before making it absolute; it is only when sitting with a jury that he has power to modify the order before making it absolute. In that case, in the preliminary notice issued by the Magistrate, the respondent was directed either to cut the trees which is said to have been in a dangerous condition or to secure the same with wires, but in the final order made he was asked to cut down the tree. He was not given any alternative. When this order was challenged before the learned District Magistrate of South Kanara, he referred the case under Section 438 Cr. P. C. to the High Court of Madras. The High Court of Madras quashed the order of the first Court holding that the Magistrate had no jurisdiction to modify the preliminary order.
4. The view taken by the Madras High Court was accepted as correct by the Calcutta High Court in Secretary, Rate-payers Committee North Barrack-pore Municipality v. Dwip Narayan Singh : AIR1952Cal127 and by the Allahabad High Court in Sadananda Tiwari v. State : AIR1958All174 . No decision taking a contrary view was brought to my, notice.
5. I am unable' to accept the contention of Sri S.V. Patil, the learned counsel for the second respondent) that in fact the final order does not materially differ from the preliminary order.
6. For the reasons mentioned above. I accept this reference and quash the order made by the learned Sub Divisional Magistrate, Gadag, division, Gadag, in Mis. Case No. 8 of 1958 on his file.
7. Reference accepted.