R.L. Gupta, J.
1. This is a reference submitted by Shri. S.R. Bhansali Sessions Judge, Balotra recommending that the order of the Sub Divisional Magistrate, Balotra dated 23.5.1970 passed in criminal case No. 206/1967 be quashed.
2. The brief facts of the case are that one Jhunjha Ram filed an application before the Sub Divisional Magistrate, Balotra under Section 138 CrPC 1898 alleging therein that Otmal with the help of his labourers non petitioners No. 2 to 9 was digging foundation on the northern side of the public way by encroaching land of the public way and had collected sand and stones obstructing the way, which may be removed. The learned Sub Divisional Magistrate passed a conditional order on 1.6.1967 to the effect that the not petitioners No. 2 to 9 and Otmal were directed to remove the obstruction from the public way which they had caused by digging foundation and collecting sand and stones. Otmal filed his reply denying to have caused any obstruction and pleaded that he has constructed a house with a verandah in patta sud land. The learned Magistrate ultimately passed the impugned order dated 23.5.1970 to remove the encroachment including the verandah. Against that order Otmal preferred a revision before the learned Sessions judge, the revision was ultimately heard & vide order dated 29-3-1976. The learned Sessions Judge was of the view that the SDM has modified his conditional order dated 1 6.70 in passing the impugned order dated 23-5-70, which in the opinion of the learned Sessions Judge was not according to law, in view of the decision of this Court in Ramu Ram v. Lumba Ram 1973 W.L.N. Part II page 33 in which it was observed that under Section 137 CrPC (1998) no modification in the conditional order was permissible As this revision was pending before the Sessions Judge at the time the new CrPC came into force, the revision was to be decided in accordance with the provisions of the old CrPC and as the Sessions Judge was required to make the reference under the old CrPC he has made this reference to this Court.
3. No body has appeared on behalf of Jhunjha Ram. The non-petitioners No. 2 to 9 are said to be the labourers of Otmal against whom this impugned order was made by the Sub Divisional Magistrate. Mr. S.R. Singhi has put in appearance on behalf of Otmal. Notice was also given to the learned Public Prosecutor.
4. I have heard the arguments and perused the record of the case.
5. It is not in dispute that the conditional order dated 16 1967 & the impugned order dated 23-5-1970 are not in confirmity so far as the removal of the verandah is concerned. It however, seems that during the period Otmal constructed the verandah but the conditional order was not modified by the Magistrate so as to include the demolition of the verandah Besides this, Panchayat Samiti, Rani has also regularised the construction of the verandah. In Ramu Ram v. Lumba Ram it was held by this Court that a Magistrate who has passed a conditional order Under Section 137 CrPC (old) has either to drop further proceedings or to make the conditional order absolute as the Magistrate cannot pass absolute order Under Section 137 CrPC on the ground not mentioned in the conditional order issued Under Section 133 CrPC. There is no specific provision in the Code of Criminal Procedure which authorises the Magistrate, while passing the order Under Section 137 CrPC. to make the order absolute subject to any modification. Under Section 137 Cr. PC no modification is permissible.
6. It may however, be mentioned that in the provisions under Section 138 of the Code of Criminal Procedure, 1973 it has now been specifically provided in Sub-clause (2) of that section that the Magistrate may pass absolute order subject to such modifications as he considers necessary. But in the present case the impugned order passed by the learned Sub-Divisional Magistrate was passed on 23-5-1970 i.e., before the new Criminal Procedure Code came into force and as the view taken by this Court in the above cited judgment no modification was permissibe, this Court has to accept the reference.
7. For the reasons mentioned above I accept the reference and quash the order dated 23-5-70 passed by the learned Sub Divisional Magistrate.