1. There is considerable confusion among the executive Magistrates dealing with petitions Under Section 133, Cr. P. C. as to the procedure to be adopted and as to the circumstances in which a preliminary order passed could be made absolute. I feel it necessary to afford guidelines in this behalf in the light of the provisions in the Code and decided cases.
2. The petitioners are the B parties in M. C. No. 23 of 1979. The 1st. respondent was the A party. Proceedings were; initiated before the Sub-Divisional Magistrate, Kottayam by the 1st respondent by a petition dated 8-6-1971 Under Section 133, Cr. P. C. on the ground that the B parties obstructed a public pathway. On receipt of this petition the learned Magistrate directed the Sub-Inspector of Police, Kottayam East Police Station to make a local inspection and to file a report. On the report of the Sub-Inspector a preliminary order Under Section 133 was passed by the Magistrate directing the B parties to remove the obstruction or to appear before that court on 24-8-1979, and to show cause why the order should not be carried out. On 24-8-1979 there was no sitting. B parties Nos. 1 and 2 appeared before the court on a subsequent date and denied the existence of a public pathway. Thereafter the case was adjourned seven times. On 26-3-1980 neither the B parties nor their counsel were present. The case was adjourned to 16-4-V980. On that day also as on 26-3-1980 neither the B parties nor their counsel were present. No objections were filed by them. Thereupon the learned Magistrate passed an order making the preliminary order passed by him on 1-8-1979 absolute directing the B parties to remove the obstruction within seven days. Aggrieved by this order the petitioners filed a revision before the Sessions Court, Kottayam without success. Hence this petition.
3. It is apparent that this petition Under Section 482, Cr. P. C. is in the form of a second revision. Even so I thought it necessary to go into the merits of the contentions put forward by the rival sides for the reason that the approach made by the courts below to the relevant provisions of law is wrong and interference is called for to secure the ends of justice.
4. Proceedings are initiated Under Section 133, Cr. P. C. The Magistrate empowered in this behalf passes a preliminary order Under Section 133(1). Sections 137 and 138 read together contemplate two stages of enquiry after the preliminary order. If the party against whom a preliminary order Under Section 133(1) is passed on being questioned as to whether he denied the existence of the public right asserted in the petition, denies such existence the Magistrate has necessarily before proceeding Under Section 138 to enquire into the matter. This is the first stage of the enquiry. Under Section 137(2) the Magistrate has to stay the proceedings until a competent civil court decides the case, if the Magistrate on such enquiry finds that there is reliable evidence in support of such denial; if he finds that there is no such evidence he shall proceed as laid down in Section 138. The scope of the enquiry Under Section 137(1) fell for consideration before a Division Bench of this Court in Mohammed Master v. Beeran, 1980 Ker LT 680, in which the ambit and the scope of such enquiry have been delineated, a discussion of which judgment is not strictly relevant for the purpose of this case. The question that falls for consideration in this case is whether the Magistrate can, when the B parties fail to appear to give evidence in support of the denial of the public right, make the preliminary order absolute. The only provision which enables the Magistrate to do so is contained in Section 136, Cr. P. C. which reads :
If such person does not perform such act or appear and show cause, he shall be liable to the penalty prescribed in that behalf in Section 188 of the Indian Penal Code, and the order shall be made absolute.
This section makes it clear that the order can be made absolute only if a person fails to appear on receipt of the preliminary order. If such person appears and denies the public right and thereafter fails to appear to lead evidence the Magistrate cannot invoke Section 136 to make the order absolute.
5. There was some divergence of opinion in this behalf at one stage. In Ambi v. State of Kerala 1961 Ker LT 617 : 1962 (2) Cri LJ 426 Anna Chandy, J. held that the conditional order could not be made absolute without the party, at whose instance the preliminary order was passed, being called upon to substantiate the allegations which necessitated the passing of the conditional order by producing legal evidence. A contrary view was expressed by Madhavan Nair, J. in Balan v. State of Kerala, 1966 Ker LT 1100. The Question was referred to a Division Bench and in Velayudhan v. Kesavan Nair, 1968 Ker LT 889, the Division Bench endorsed the view taken in Ambi's case, 1961 Ker LT 617 : 1962 (2) Cri LJ 426. In the said case the Division Bench was dealing with Sections 137 and 139-A under the old Code. The placement of the two sections in that Code was in the topsyturvy position, Section 137 of the old Code corresponding to Section 138 of the present Code and Section 139-A corresponding to Section 137. The principle enunciated by the Division Bench is contained in paragraph 5 at page 892:
A combined reading of Sections 137 and 139A shows that there are 2 distinct stages in the inquiry contemplated by those Sections, the first being that Under Section 139A (2) and the 2nd that Under Section 137. Entering on the 2nd stage arises only if the party against whom the conditional order was passed defaults to adduce reliable evidence in support of his denial of the existence of a public right. In the scheme of the inquiry the proper place for the provisions in Section 137 is after Section 139A. Its present place above Section 139A has been partly responsible for the confusion it has created.
I respectively agree.
6. The resultant position is that a Magistrate can make a preliminary order absolute only when the party against whom a preliminary order is passed fails to appear before him on the first occasion after receipt of the preliminary order. When the party appears and denies the public right, the Magistrate has to enquire into the denial put forward and pass appropriate orders on such enquiry in accordance with Section 137(2). If the party against whom the preliminary order is passed fails to appear to lead evidence in support of his denial the Magistrate has to enter into the second stage contemplated in Section 138, Cr. P. C. and enquire about the existence of the public right alleged by taking evidence in the matter as in a summons case. Section 137(3) places an embargo upon a person against whom a preliminary order is passed and who fails to lead evidence in support of his denial and that embargo is against his giving any evidence in the enquiry Under Section 138 in support of the denial of the public right. After such enquiry the Magistrate can Under Section 138(2) on being satisfied that the order is reasonable and proper either make the order absolute without modification or, as the case may be, with modification. If the Magistrate is not so satisfied the proceedings will have to be dropped. These are the limits set out by the sections.
7. Against this background I will consider the facts of this case. I am not unaware of the fact that the petitioners- B party-in this case were not only not diligent but had deliberately absented themselves on many occasions. That by itself will not enable a Magistrate to make the preliminary order absolute once the Magistrate finds that the party had, in response to the preliminary order, appeared on the first hearing date and denied the existence of the public right. In this case if the Magistrate felt that the petitioners were deliberately absenting themselves he should have refused adjournments and entered into the second stage contemplated Under Section 138, Cr. P. C; instead of doing so the Magistrate made the preliminary order absolute which is without jurisdiction. It was incumbent on him to enquire into the existence of the public right alleged by taking evidence as in a summons case which he did not. This jurisdictional aspect escaped the notice of the learned Sessions Judge also.
8. Section 133 deals with public nuisance, It behoves the court dealing with proceedings under Chapter X dealing with public nuisances to try to dispose of the proceedings with expedition. In this case the petitioners were absent. The case underwent seven adjournments. The Magistrate could have at the earliest opportunity directed the petitioners - B party - to adduce evidence and on such failure could have proceeded with an enquiry Under Section 138. Instead of acting with expedition the Magistrate fell into the jurisdictional error of failure to comply with the mandatory provisions contained in Sections 137 and 138.
9. I notice a decision reported in Pou-lose v. Padmanabhan Nair, 1971 Ker LT 747, which strikes a discordant note from the Division Bench reported in Velayudhan v. Kesavan Nair, 1968 Ker LT 889, Sadasivan J. has observed that the provision in Section 139-A (1) is only directory. In that case the person against whom a conditional order was passed appeared and filed written statements covering all the aspects of the case in pursuance of the notice. The learned Judge held that it must be presumed, in the circumstances, that on their appearance they were questioned by the Magistrate Under Section 139-A. With respect, I find that this observation is no longer good law in view of the Division Bench case in 1968 Ker LT 889 which was not brought to the notice of the learned Judge.
10. A submission is possible that the defect of not complying with Section 137(1) can be cured under S, 465, Cr. P. C. In Rajpati v. Bachan : 1980CriLJ1276 , the Supreme Court dealing with a proceeding Under Section 145, Cr. P. C. observed as follows in paragraph 10 :
Assuming, however, that there was an omission on the part of the Magistrate to mention in his final order that there was breach of the peace, that being an error of procedure would clearly fall within the domain of a curable irregularity which is not sufficient to vitiate the order passed by the Magistrate, particularly when there is nothing to show in the instant case that any prejudice was caused to any of the parties who had the full opportunity to produce their evidence before the Court. It was therefore not correct on the part of the High Court to have interfered with the order of the Magistrate on a purely technical ground when the aggrieved party had a clear remedy in the civil court.
In the peculiar facts of that case the Supreme Court held that omission on the part of the Magistrate to mention in his final order that there was breach of the peace came within the domain of a curable irregularity and that no prejudice was caused. The above observation which came to my notice though not cited at the bar cannot be made use of in a case like this. The failure to comply with the procedure contained in Section 137(1) cannot be brought within the domain of a curable irregularity. It is a defect vitally affecting the jurisdiction of the order and hence non-compliance with this mandate vitiates the orders.
11. Under these circumstances I find that this is a fit case for exercise of jurisdiction Under Section 482, Cr. P. C. to give effect to an order under this Code and to secure the ends of justice. I quash the orders of the Sub-Divisional Magistrate and that of the learned Sessions Judge and allow this criminal miscellaneous petition and remit the case back to the Sub-Divisional Magistrate, Kottayam with a direction to take the case on his file and proceed with the enquiry Under Section 138, Cr. P. C. keeping in view the prohibition contained in Section 137(3). The learned Magistrate is directed to dispose of the case with utmost expedition.