1. This is a Rule calling upon the Deputy Commissioner of Lakhimpore and the opposite party to show cause why the order dropping proceedings under Section 133, Criminal Procedure Code, should not be set aside and the case proceeded with according to law.
2. The opposite party has appeared to show cause.
3. The petitioner before as complained against the opposite party that a hide godown belonging to him was causing a great nuisance in the locality and prayed that it might be directed to be removed. The learned Magistrate thereupon made a conditional order under Section 133. The opposite party was served with notice to show cause and he showed cause. Thereupon the Deputy Commissioner directed the Assistant Commissioner to make an inquiry at his own convenience and report. On receiving the report of the latter, the Deputy Commissioner made the following order: 'Read the Assistant Commissioner's report. This shows that there is no ground for an order under Section 133, Criminal procedure Code. Rule discharged.'
4. We think that this order ought not to have been made without taking evidence as directed by Section 137 of the Code. The provisions of that section are imperative. The section 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. Now, Clause (2) of the section lays down that, if the Magistrate is satisfied that the order is not reasonable and proper, no farther proceedings shall be taken in the case, But before the Magistrate can make an order under Clause (2) it is clear that he must take evidence in the matter as directed by Clause (1). We may refer to the case of Sarojbasini Debi v. Sripati Charan Chowdhury 28 Ind. Cas. 799 : 16 Cr. L.J. 415 : 19 C.W.N. 332 : 42 C. 702, and also to the case of Upendra Nath Mandal v. Rampal 4 Ind. Cas. 436 : 10 C.L.J. 482 : 11 Cr. L.J. 1.
5. It is contended on behalf of the opposite party that the petitioner does not appear to have applied to the Magistrate for examining witnesses. But, evidently, he had no opportunity of adducing evidence before him. The Deputy Commissioner, on receipt of the report of the Assistant Commissioner, at once dropped the proceedings.
6. The order complained of must, therefore, be set aside and the case sent back to the Deputy Commissioner in order that he may proceed according to law.