1. This is a reference by the Additional Sessions Judge of Agra recommending that an order of the City Magistrate dated 24th April 1935, be set aside. By that order the City Magistrate made absolute an order which had been issued to the applicants under Section 133, Criminal P.C. The ground on which the learned Judge recommends that the order of 24th April be set aside is that it was passed without an opportunity being given to the applicants of being heard. A petition was presented by the opposite party on 9th January 1934, against the three applicants and seven other persons complaining that they were squatting and selling vegetables at a public place in front of the shops occupied by the opposite party and that they thereby constituted an unlawful obstruction. On receipt of this petition the City Magistrate at first wrote to the Chairman of the Municipal Board in the hope that he might be able to arrange matters,; but when no action was taken, a second petition was put in and the proceedings under Section 133, were thereupon revived. Two local inspections were made by the City Magistrate and an enquiry was made under Section 139-A, Criminal P.C. Ultimately the proceedings were stayed pending the decision by the civil Court. Thereafter four persons who were not the opposite party instituted a suit in the Munsif's Court against the three applicants, the plaintiffs in that suit alleging themselves to be trustees of a Jain Pathshala which owned certain shops in that locality. On 12th October 1934, judgment was given in favour of the plaintiffs.
2. After this, on 9th April 1935, it appears that a jury was appointed by the City Magistrate in accordance with Section 135-B, Criminal P.C., and the Tahsildar was appointed foreman. He fixed 16th April 1935, for the attendance of the parties and the jurors, but on that date neither of the two jurors who had been nominated by the applicants was present and the applicants themselves were also absent. The case was adjourned to the following day and on that day also one of the jurors nominated by the applicants was absent and also the applicants themselves. The foreman then submitted his report to the Court. On receipt of that report the City Magistrate on 24th April passed the order to which the learned Judge takes exception. The Judge observes:
The learned Magistrate has apparently taken proceedings under Section 141, Criminal P.C., but he does not appear to have given any opportunity to the applicants to appear before him and to produce any evidence if they so liked.
3. He then cites the case Ajudhia Tewari v. Emperor 1923 Pat 131, decided by a learned Judge of the Patna High Court. But in that case all that happened was that the jury failed to report within the time which had been allowed to them; there was no question of negligence or obstruction. In Jib Lal Teli v. Gena Sahu 1923 Pat 229, another learned Judge of that Court ruled that if the jury failed to return their verdict within the time fixed, the Magistrate had jurisdiction to make the order absolute but where a Jury failed to perform its duty through no fault of the person against whom a conditional order had been passed, the Magistrate in acting under Section 141, might in the exercise of his discretion give the petitioner a chance of showing cause and satisfying himself that there was no reason to make the order absolute. In the present I have already shown, the applicants wilfully absented themselves on 16th April and again on 17th April 1935, and the Magistrate has found that it was on account of the tactics adopted by the applicants that the jury was unable to return a verdict. In my opinion the City Magistrate was fully justified in making his provisional order absolute. Moreover, two local inspections had already been made and evidence had been given in proceedings under Section 139-A. Section 141, Criminal P.C., is worded as follows:
If the applicant, by neglect or otherwise, prevents the appointment of the jury, or if from any cause the jury appointed do not return their verdict within the time fixed or within such further time as the Magistrate may in his discretion allow, the Magistrate may pass such order as he thinks fit, and such order shall be executed in the manner provided by Section 140.
4. Thus it will be seen that the legislature is silent as regards an opportunity being given to the person who has applied for a jury of showing cause and producing evidence; and the reason for such silence is, I think, clear. There will be cases, as for example where the jury is unable to report within the time fixed for reasons beyond the control of the applicant, where it would be improper for the Court not to hear the applicant and allow him to show cause before the order was made absolute: but where the applicant has been negligent or obstructive and has wilfully abstained from appearing before the jury, which had been appointed at his instance to settle the dispute, there is, in my opinion, no obligation whatsoever on the Court to issue notice to him before confirming the provisional order which had been passed under Section 133. This being my view, I reject this reference, let the record be returned.