L.S. Mehta, J.
1. This is a reference, submitted by Miss Kanta Bhatnagar. Additional Sessions Judge No. 2, Jodhpur. recommending that the order, dated November 30. 1971. of the Sub-Divisional Magistrate. Phalodi. be quashed.
2. The brief facts of this ease, it appears, are that on January 12. 1970, Lumba Ram made an application in the court of Sub-Divisional Magistrate, Phalodi. under Section 133. Criminal Procedure Code, avouching that in the out-skirt of village Lohawat there ran a road, connecting Lohawat with Osian. It was about 100 ft. wide. On its one side Ramu Ram and Manohar Lai were constructing 'pucca' shops. That construction was likely to create obstruction and inconvenience to the passersby and the public at large. The petitioner, therefore, prayed that orders be issued requiring Ramu Ram and Manohar Lai to remove the obstruction. On receipt of that complaint the Sub-Divisional Magistrate, Phalodi, passed a conditional order, asking the persons causing obstruction to the road to stop the erection of the building or. if they objected so to do. to appear before himself and move to have the order set aside or modified. Ramu Ram submitted a written reply on March 20. 1970. wherein he contended that he had not intruded upon the public road and that the plot on which he had been constructing the shop had been allotted to him by the Gram Panchayat. Ramu Ram further urged that petitioner Lumba Ram had been ex-Sarpanch of the Gram Panchayat. Lohawat and because of some differences of opinion in the matter of according permission to raise construction he got annoyed and that led him to make the frivolous application. Learned Sub-Div. Magistrate, Phalodi recorded the evidence, led by both the parties and eventually held that there was infringement on the public way. He accordingly directed that the building meant for the purpose of starting a hotel should be removed.
3. Aggrieved by the above order Ramu Ram presented a revision petition to the court, of Sessions Judge. Jodhpur. That revision petition was transferred for its disposal to the court of Additional Sessions Judge. No. 2. Jodhpur, Learned Additional Sessions Judge is of the opinion that when there was no direction in the conditional, order to remove the building the Sub-Divisional Magistrate had no jurisdiction to order its elimination. Learned Additional Sessions Judge has, therefore submitted this reference, re- commending that the impugned order, dated November 30. 1971, passed by the Sub-Divisional Magistrate. Phalodi. should be quashed.
4. I have heard learned Counsel, representing both the parties. Counsel for Ramu Ram supported the reference. Mr. J. P. Joshi. counsel representing Lumba Ram, opposed it. His contention is that while passing the conditional order the intention of the Sub-Divisional Magistrate was no other but to direct Ramu Ram to do away with the construction. According to him due to some technical error the Sub-Divisional Magistrate could not mention in the conditional order, passed on January 12, 1970, that the construction should be removed from the spot. The side opposite, counsel adds, cannot take undue advantage of a mere technical error.
5. The relevant part of the conditional order, passed by learned Sub-Divisional Magistrate reads thus::
By this conditional order the noni petitioners are directed not to create obstruction on the public way and that the construction work should be stopped till further orders or also that the non-petitioners should appear before the court on January 7. 1970, to show cause as to why the conditional order should not be made absolute.
In compliance with the above order, Ramu Ram put in appearance before the court and submitted his reply. After recording evidence and hearing both the parties, the Sub-divisional Magistrate, by his order, dated November 30. 1971. directed that the building should be removed as it created obstruction on the public way, connecting Lohawat with Osian.
6. Under Section 133(1). Cr. P. G. whenever a District Magistrate, a Sub-divisional Magistrate or a Magistrate of the first class considers, on receiving a police-report or other information and on taking such evidence (if any) as he thinks fit, that any unlawful obstruction or nuisance should be removed from any way, river or channel, which is or may be lawfully used by the public, or from any public place, such Magistrate may make a conditional order, requiring the person causing such obstruction or nuisance....within a time to be fixed in the order, to remove such obstruction or nuisance. Section 134, Cr. P. C, provides how the service of the notice referred to in Section 133, Cr.PC. shall be effected. Section 135, Criminal Procedure Code, lays down that the person against whom such order is made shall (a) perform, within the time and in the manner specified in the order, the act directed thereby; or (b) appear in accordance with such order and either show cause against the same; or apply to the Magistrate by whom it was made to appoint a jury to try whether the same is reasonable and proper. In such a case the final order is passed under Section 139 of the Code, which confers jurisdiction on the Magistrate to make the order absolute, subject to any modification found necessary. The provision which is important for our present purpose is embodied in Section 137, Cr.PC It runs as under: -
137. Procedure where he appears to show cause. - (1) If he appears and shows cause against the order, the Magistrate shall take evidence in the matter as in. a summons case,
(2) If the Magistrate is satisfied that the order is not reasonable and proper, no further proceedings shall be taken in the case.
(3) If the Magistrate Is not so satisfied the order shall be made absolute.
Under Section 135(b). Cr. P. C, it Is open to the jury to try the issue whether the order made is reasonable and proper. But so far as the Magistrate, who has passed a conditional order under Section 133, Cr. P. C, is concerned, all that he can do under Section 137 is that either he should drop the proceedings if he is satisfied that the conditional order is not reasonable and proper or if he is satisfied that the order is reasonable and proper, he shall make the order absolute. The only power conferred upon the Magistrate under Section 137, Cri P. C. is either to drop the proceedings or to make the conditional order absolute and no more. Thus, it will be seen that when the Magistrate sitting alone disposes of the matter under Section 137. CrIPC he has no jurisdiction to modify the original order.
7. The above view gets support from some of the authorities. In D'silva v. D'silva AIR 1943 Mad 335 : (44 CriLJ 545). it has been observed by Byers J. That a Magistrate sitting alone under Section 137 has no jurisdiction to modify the original order before making it absolute. It is only when sitting with a jury that he has power to modify the order before making it absolute. The matter under discussion also received consideration of the Allahabad High Court in Sadanand Tiwari v. State : AIR1958All174 In that case the Court held:
S. 137 does not empower a magistrate sitting alone to modify the order passed by him under Section 133. Cr.PC If a person against whom the preliminary order has been passed under Section 133. wants that it should be modified, he should make an application under Section 135. Cr. P. C, for the appointment of a jury and then the Magistrate sitting with the jury can pass an order under Section 139, Cr.PC, modifying the preliminary order if the majority of the jurors are in favour of it.
There Is another authority on the point in issue, reported in Secretary Ratepayers Committee v. Dwip Narayan : AIR1952Cal127 . In that case Guha J.. observed:
There is no specific provision in the Act which authorises the Magistrate when passing an order under Section 137 to make the order absolute subject to any modification. Hence a Magistrate sitting alone without any jury has no power to modify the preliminary order under Section 133 before making it absolute under Section 137.
Similarly his Lordship Hegde J. (as he then was) in State v. Mahadevappa AIR 1964 Mys 52 : (1(1964) 1 Cri LJ 413)1 laid down'
There is no provision in the Criminal Procedure Code authorising the Magistrate either to amend the preliminary order or to. Pass any order except in accordance with the preliminary notice. The only power conferred on the Magistrate is to make the preliminary order absolute and nothing more. He cannot modify the preliminary order while passing the final order.
However, in Emperor v. Jhou Lai, 26 Cri LJ 731 : (AIR 1925 All 310), the Allahabad High Court laid down that modification of the conditional order is oermls-sible in suitable cases. In my opinion in view of the precise wordings of Section 137(3). Criminal Procedure Code, the Allahabad case does not lay down correct law. That case lays down that if the Magistrate is pot satisfied with the cause shown against the conditional order, the order shall be made absolute. Unless the case is covered by Section 139. there is no qualification in so far as Section 137, Criminal Procedure Code Is concerned.
8. Keeping in view the above authorities I am of opinion that a Magistrate, who has passed a conditional order, under Section 137, Criminal Procedure Code, has either to drop further proceedings or to make the conditional order absolute. A Magistrate cannot pass absolute order under Section 137. Criminal Procedure Code on the ground not mentioned in the conditional order issued under Section 133. Criminal Procedure Code. There is no specific provision In the Code of Criminal Procedure which authorises the Magistrate, while passing an order under Section 137. Criminal Procedure Code, to make the order absolute subject to any modification. I am. therefore, inclined to accept the view as correct that under Section 137, Criminal Procedure Code, no modification is permissible. I am thus unable to accept the contention of Mr. Joshi, learned Counsel for Lumba Ram. that in fact the final order passed by learned Sub-divisional Magistrate, Phalodi, on November 30. 1971. does not materially differ from the preliminary order and it should be sustained.
9. From the reasons mentioned above. I accept this reference and quash the order dated November 30. 1971, of the Sub-divisional Magistrate, Phalodi. Lumba Ram is at liberty to make a fresh application in the court concerned in accordance with law.