1. This is a reference by the Sessions Judge of Dacca, under Section 438, Criminal Procedure Code, in the matter of a proceeding under Section 133.
2. On the 21st February 1916 the President, Panchayet of the Hashara Union, reported to the Sub-Divisional Magistrate of Munshigunge that the halat from the Hashara Bazar to Teghoria had been destroyed by several persons (six of whom were mentioned in his list, 'who had either dug earth therefrom, or excavated a pond, or had ploughed up the land and included it in their holding.' On the 4th March the Magistrate directed proceedings to be drawn up against all the persons to show cause why they should not remove the obstructions mentioned; by the same order he fixed the 24th March for the hearing of the case. A proceeding was then drawn up against the six persons jointly requiring them to remove the obstructions mentioned within seven days or to show cause on the 24th March why the order should not be confirmed. The order, however, in the form No. 16, Schedule V of the Criminal Procedure Code, was not drawn up and signed till the 14th March and was not made over to the peon till the 18th March. His return shows that the order was not served till the 21st March. On the date fixed, one of the six persons mentioned in the notice appeared and stated that he had no objection to remove the obstruction, and the order was made absolute against him; three of the others were absent and (the order was made absolute against them under Section 136. The remaining two persons appeared and prayed for an adjournment to enable them to file a written statement. The Magistrate refused the application and made the order absolute against them also. Pursuant to this order, a notice was issued upon them that they do remove the obstruction immediately on receipt of the notice. The Sessions Judge has, upon the application of these two persons, who had appeared to show cause under Section 135, recommended that the order be set aside on two grounds, namely, first, that the petitioners had not sufficient opportunity to show cause against the order, and secondly, that the proceedings were defective, because the initial as well as the final order was not sufficiently precise. We are of opinion that these objections are well founded.
3. The initial order under Section 133, though made on the 4th March, was not served till the 21st March. The reason for the delay has not been explained, but the result has been that the petitioners had only two days to enable them to show cause. Their application for an adjournment was thus not unreasonable. It cannot be overlooked that a proceeding under Section 133 is, in the first instance, entirely ex parte, and, as pointed out in Srinath Roy v. Ainaddi Haider 24 C. 395 : 1 C.W.N. 217 the report or the other information whereon the Magistrate has taken action before making the conditional order is no evidence against the opposite party. It is consequently desirable that reasonable opportunity should be given to the opposite party to show cause as contemplated by Section 135, Clause (b), and to adduce evidence as prescribed by Section 137(1). In the case before us, we agree with the Sessions Judge that the petitioners had not such opportunity given to them. We may add that the Magistrate in his explanation relies upon the result of an inspection he had made of the locality in the course of a tour long previous to the institution of the proceedings. It may be pointed out, as explained in Upendra Nath Mandal v. Rampal 4 Ind. Cas. 436 : 10 C.L.J. 482 : 11 Cr.L.J. 1 that an order under Section 133 cannot, even by consent of parties, be based upon information gathered at a local enquiry.
4. It is further plain that the initial order is not sufficiently specific when in a proceeding under Section 133 instituted against a number of persons, it is alleged that various unlawful obstructions have been caused upon a public way it is essential that the order should state accurately, with regard to each person, the specific obstruction made by him, which he is required to remove, unless it is alleged that all the persons are jointly responsible for all the obstructions mentioned. No person can be called upon under Section 133 to remove an obstruction not caused by himself. In the case before us, there is no allegation that the unlawful obstructions imputed to the opposite party had been caused by all of them jointly; on the other hand, from, the report of the President, Panchayet, it seems that different persons had caused different obstructions. In these circumstances, a joint initial order, which does not specify what, obstruction each person called upon to show cause has made, followed by a joint order absolute, which does not specify what each member of the opposite party is required thereby to do, cannot be supported. As was pointed out by Jenkins, C.J. in Kali Mohan Kar v. Nakari Chandra Das 5 Ind. Cas. 722 : 11 C.L.J. 114 : 11 Cr.L.J. 213 an order issued under Section 131 should not be vague and indefinite or ambiguous, but must be such that the persons to whom it is directed may be able to learn from its terms what it is that they are to do for the purpose of complying with it. This is no trivial matter, for, under Section 140, disobedience to the order renders the defaulter liable to serious penal consequences, namely, to a prosecution under Section 188, Indian Penal Code.
5. We accordingly accept the recommendation of the Sessions Judge and set aside the order of the Magistrate dated the 24th March 1916.