M. Santosh, J.
1. This is a reference under Section 438. Criminal Procedure Code made by the learned Sessions Judge of North Kanara. Proceedings were initiated under Section 133. Criminal Procedure Code against the respondent on a report received from the Police of Karwar. The learned Sub Divisional Magistrate made a conditional order dated 10-8-1971 directing the respondent to remove the public nuisance and stop the user of the latrine or to appear before the Court on 18-8-1971 and show cause against the said order. After the conditional order was served on the respondent, the respondent appeared before the Court and filed his objections denying the charges levelled against him. Thereafter; the learned Magistrate inspected the spot on 26-8-1971 and made the conditional order absolute under Section 137 (3). Criminal P.C.
2. The learned Sessions Judge has pointed out that the learned Magistrate has not followed the mandatory provisions of Sub-clause (1) of Section 137, Criminal Procedure Code before making the order absolute. Section 137, Criminal Procedure Code reads as follows:
137 (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 so satisfied, the order shall be made absolute.
It is clear from the provisions of Sub-clause (1) of Section 137 that if a person appears and shows cause against the conditional order the Magistrate can make the order absolute under Sub-clause (3) only after taking evidence in the matter as in a summons case. As pointed by the learned Sessions Judge, this provision is mandatory and hence the order passed by the learned Sub Divisional Magistrate is clearly illegal and has to be set aside.'
3. For the reasons mentioned above. I accept, the reference and set aside the impugned order passed by the learned Sub Divisional Magistrate under Sub-clause (3) of Section 137. Criminal Procedure Code. The learned Magistrate is directed to proceed with the case according to law in the light of the observations made in this order.