L.S. Mehta, J.
1. This is a reference, submitted by learned District Magistrate, Churu, recommending that the order dated August 9, 1971, of the Subdivisional Magistrate, Raigarh, directing to drop proceedings in accordance with the provisions of Section 137, Cr. P. C., be quashed,
2. The facts of this case are mentioned in detail in the order of reference submitted by the District Magistrate and they need not be reproduced. Suffice it to say that the gist of the case is that one Murari Lal filed an application under Section 133, Cr. P. C., against Ram Swaroop and others in the Court of the Subdivisional Magistrate, Raigarh, stating therein that the non-petitioners were raising construction which created obstruction and nuisance on the public lane and prayed that the same might be directed to be removed. Learned Subdivisional Magistrate thereupon made a conditional order under Section 133, Criminal P. C. The opposite party was served with notices to show cause and they showed cause. Later on the Subdivisional Magistrate directed the Tehsildar to prepare a site plan. On receiving the report of the Tehsildar, the Sub-divisional Magistrate passed the following order:
That in front of the new construction of the opposite party Ram Swaroop and others there is a lane, 22 ft. to 27 ft. wide. It would therefore be improper to hold that there was an obstruction to the lane, having so much of width, particularly when towards the south of the lane its width was 12 to 14 ft. wide. Under the circumstance the conditional order, made against the non-petitioners, is withdrawn and the proceedings are dropped.
Learned District Magistrate, Churu, is of the opinion that this order ought not to have been made without taking evidence as provided in Section 137, Criminal P. C.
The provisions of Section 137, Criminal P. C., are imperative. Section 137(1), runs as follows:
If he appears and shows cause against the order, the Magistrate shall take evidence in the matter as in a summons case.
Sub-section (2) of Section 137, Criminal P. C., lays down that if the Magistrate is satisfied that the order is not reasonable and proper, no further proceedings shall be taken in the case. But before the Magistrate can make an order under Sub-section (2), it is clear that he must take evidence in the matter as laid down in Sub-section (1). In this connection, a reference is made to Shew Khelaon v. Nayan Bepari AIR 1920 Cal 834 (2) : 22 Cri LJ 239; Sarojbashini Debi v. Sripati Charan ILR 42 Cal 702 : 16 Cri LJ 415 and Upendra Nath Mandal v. Rampal (1910) 4 Ind Cas 436 : 11 Cri LJ 1 (Cal). When a Magistrate makes a conditional order in accordance with the provisions of Section 133, Criminal P. C., against a party who appears to show cause, he is bound, under Section 137(1), Criminal P. C., to take evidence in accordance with law. It is open to him thereafter to consider whether there is complete answer to the case, or whether or not it is a proper case for reference to the Civil Court. The Magistrate cannot bypass or escape the words of the Legislature. The Legislature directs that the Magistrate shall take evidence in the matter as in a summons case. But here he has not performed his duty cast upon him by law.
3. Keeping in view the above authorities the parties concerned ought to have been given an opportunity of adducing their evidence before the Sub-divisional Magistrate. The Court, on the other hand, on receipt of the report of the Tehsildar at once dropped the proceedings. The order of the Sub-divisional Magistrate, Rajgarh, dated August 9, 1971, is, therefore, not in accord with the provisions of Section 137, Criminal P. C. That order, therefore, must be set aside and the case be sent back to the Subdivisional Magistrate, Raigarh, in order that he may proceed according to law.