Kumari P. Janaki Amma, J.
1. In proceedings initiated under Section 133 of the Code of Criminal Procedure at the instance of A party, the Executive First Class Magistrate, Chengannur, after considering reports received from the Tahsildar, Chengannur, passed a conditional order calling upon the B party to cut and remove a coconut tree stated to be in a dangerous condition or in the alternative to show cause why the order should not be made absolute. The B party appeared in court and filed a written statement on 1-12-73 denying the allegations and contending that there was no danger to the property of the A party as alleged. The case stood posted to 15-12-1973 for evidence. On that day the A party was absent. The B party was present. The Magistrate ordered summons to A party. The case came up again on 19-1 -74. The A party was present on that day; but the B party was absent. The court, without any further enquiry into the matter, held that it was necessary to take action as indicated in the conditional order. The B party was accordingly directed under Section 140(1) of the CrI.P.C. to cut and remove the coconut tree. The revision petition is filed against the above order.
2. The revision petitioner's case is that the procedure followed by the Magistrate was irregular and illegal and contrary to the provisions of the Criminal Procedure Code.
3. Sections 133 - 137 and 140 of the Cr. P. C, deal with the law relating to the matter. Under Section 133, the Magistrate is competent to pass a conditional order calling upon the owner of a property to remove trees which are a source of damage to a neighboring property and its owner. The conditional order should be served on the concerned person as directed in Section 134. The person against whom the order is made should either comply with the directions in the order or appear in accordance with the order and show cause against the order. This is provided in Section 135, In case he defaults to perform the act as directed or to show cause, he would be liable to the penalty prescribed in Section 136. Section 137 states that if he appears and shows cause, the Magistrate should take evidence in the matter as in a summons case. If after recording the evidence, the Magistrate is satisfied that the order is not reasonable and proper, no further proceedings should be taken. If he is not satisfied, the order should not be made absolute. Section 140 deals with the procedure on the order being made absolute and the consequences of disobedience to order.
4. Section 137 is the main provision which his a bearing in the disposal of this case. In Velayudhan v. Kesavan Nair 1968 Ker LT 889, a Division Bench of this Court had occasion to consider the scope of that section and Section 139A. The relevant passage is at page 893 and it runs as follows :
Now we go straight to the question whether a Magistrate who makes a conditional order absolute under Section 137(3) can do so without taking the evidence of the party at whose instance he passed the conditional order. We are of the opinion that it cannot be done. That is firstly because there is scope for the application of Section 137 (2) and (3) only after the conclusion of the inquiry contemplated by Section 137(1) and the provision in Sec-137(1) that in an inquiry under it evidence should be taken as in a summons case indicates that the Magistrate has to take the evidence of the party at whose instance the conditional order was passed before the disposal of the case. Section 244 which comes in Chapter XX dealing with the trial of summons cases says that the Magistrate should hear the complainant, if any, and take all such evidence as may be produced in support of the prosecution and thereafter take the evidence adduced by the accused. The words 'Evidence in the matter' employed in Section 137(1) mean evidence of the complainant. Secondly, at the beginning of the stage of the inquiry under Section 137(1) the only material before the Magistrate in support of the conditional order he passed is the information or expert statements he received under Section 133(1) and they cannot take the place of legal evidence for passing a final order. And thirdly, if even without taking the evidence of the party at whose instance the conditional order was passed that order is to be made absolute on the default to let in evidence of the party against whom it was passed it works out as a penalty for his default and such a penalty is not provided for in Section 139A(3) which deals with penalties for defaults in such cases.
That was a case of a public right falling under Section 139-A. But the procedure under Section 137, Cr. P. C, is involved in such cases also. See also Lai Behari v. Jatindra Chandra AIR 1949 Cal 57 : 49 Cri LJ 608. It is also clear from the sections referred to above that if on a conditional order being served, the person against whom proceedings are initiated appears and shows cause and submits to the judgment of the Magistrate, the court is bound to take evidence as directed in Section 137. In the matter of Nimae Churn Dey v. Kashie Nath Rakhit (1877) 26 Suth WR (Cri) 7. The objections even if filed after the date fixed for presentation thereof should be considered if they are available when the case is taken up. In re Bistoo Chunder Chuckerbutty (1868) 10 Suth WR (Cri) 27. In other words, if the person against whom the show cause summons is served, appears and files objections, the Magistrate should not dispose of the case under Section 136 but should take evidence and satisfy himself that the order passed by him is reasonable and proper. Even in cases the person concerned does not pursue his objections, the complainant should lead evidence on his side and should not leave the Magistrate to base his order on materials placed before him when the preliminary order was passed. Neither the reports of the Tahsildar nor police papers relating to the case nor evidence produced while passing order under Section 133 are substitutes for the taking of evidence under Section 137, See Rameshwar v. Emperor AIR 1939 Bom 92: (40 Cri LJ 444); Kadhori v. Emperor AIR 1926 All 193 : 27 Cri LJ 276; and State v. Thakor Bhai Sukhabhai : AIR1968Guj15 .
5. In the instant case, the B party appeared in response to the summons issued to him and filed objections. He has done what is expected of him under Section 135. Thereafter the court should have recorded evidenece as in a summons case. The case stood adjourned to 15-12-73 for that purpose. The B party was present on that day but the A party was absent. The procedure to be followed under such circumstances is provided in Section 247, Cr.P.C. The Magistrate could have either dropped proceedings or if there were proper reasons could have adjourned the hearing. lie chose to issue summons to A party and adjourned the case to a later date. No reasons are recorded for adopting that course. The case of the revision petitioner is that when the case was taken up on 19-1-1974, he went to fetch his Advocate and by the time he reached the court, the Magistrate had already dispose ed of the case. There are no materials to show whether the averments in the petition are true. But haying posted the case for enquiry, it was incumbent on the Magistrate to call upon the complainant to adduce evidence either by examining himself or otherwise. He should not have passed the final order relying solely on the materials available at the time of the conditional order. For the above reasons, I set aside the order of the Executive First Class Magistrate and remand the case to that court for disposal, according to law. The revision petition is allowed.