1. On a complaint of the Sub Inspector of Police, Rural Station, Chickma-galur, the Sub-Divisional Magistrate, Chick-magalur, took action under Section 133, Cr.P.C. and passed a preliminary order on 1-6-1972, calling upon the petitioner to restore the waste weir draft channel as it originally existed and to close the pit at his own cost within 30 days from the date of service of the preliminary order or to appear before Court on 22-6-1972 and file his objections to get the order set aside and if he failed to restore the waste weir as directed, he would be liable to the penalty prescribed under law and that the order shall be made absolute.
2. The petitioner appeared before the Sub-Divisional Magistrate and filed his objections on 27-11-1972 stating among other things that he had not committed any nuisance and even if he had committed those acts under the mining lease he had unfettered powers to deal with the waste weir and finally stated that he had not obstructed any water course and the waste weir had been left intact and if there was any dispute, it was of civil nature. The Sub-Divisional Magistrate thereafter directed the petitioner to appear before him along with witnesses and documents in support of his case. He posted the case from lime to time but the petitioner did not appear before him. Therefore, the Sub-Divisional Magistrate passed, an order under Section 137, Criminal P.C. read with Section 137-A, Criminal P.C. making the preliminary order absolute. Aggrieved by this decision, the petitioner has preferred this petition.
3. Under Section 137. Criminal P.C. a Magistrate is bound to take evidence as basis for the order he has to make. The conditional order cannot be made absolute when the party, namely, the complainant being called upon to substantiate the allegation, which necessitated the passing of the conditional order without legal evidence did not appear. When a party against whom a conditional order is made, appears and shows cause, the Magistrate is bound to take evidence produced by him. But if he does not produce evidence, it is still incumbent on the Magistrate to record evidence of the complainant and others if any and then pass the final order under Section 137, Criminal P.C. That not having been done in this case, the final order passed by the Sub-Divisional Magistrate cannot be sustained.
4. I. therefore set aside the final order and direct the Sub-Divisional Magistrate to take evidence and then proceed to pass the final order.