VELAYUDHAN v. KESAVAN NAIR — 1968 DIGILAW 239 (KER)

Judgment :- 1. This matter has come up before us with an order of reference passed by our learned brother Mr. Justice Raghavan. That order reads as follows: "The Executive First Class Magistrate, Trivandrum started proceedings under S.133 of the Code of Criminal Procedure. Notice of the preliminary order was given to the petitioners; and they filed their objections before the Magistrate. However, they did not produce evidence in support of their objections, which they were bound to do under S.139A of the Code. Then, the Magistrate confirmed the preliminary order without taking evidence. In revision the said order is being challenged. The counsel of the petitioners draws my attention to the decision of this Court in Ambi v. State of Kerala (1961 KLT. 617) by Anna Chandy J. laying down that under S.137'the conditional order cannot be made absolute without the party (complainant), being called upon to substantiate the allegation, which necessitated the passing of the conditional order by producing legal evidence'. I am inclined to agree with this. The counsel of the first respondent, the petitioner before the Executive First Class Magistrate, draws my attention to another decision of this Court by Madhavan Nair J. in Balan v. State of Kerala (1966 KLT. 1100). The head-note of the case reads: 'S. 137 contemplates proof not of reasonableness and propriety of the conditional order passed but of its unreasonableness and impropriety. If evidence therefore is not forthcoming the Section requires the Magistrate to make the conditional order absolute. In other words it is for the person against whom a conditional order has been made to convince the Magistrate, that the conditional order was not reasonable or proper in the facts and circumstances of the case and not for the other party to lead evidence to satisfy the Magistrate that his conditional order was reasonable and proper.' These two decisions by two learned judges of this Court appear to conflict, one taking the view that in any enquiry under S.137, the complainant must adduce evidence and the other taking the view that in such a proceeding, the respondent should produce evidence against the preliminary order and the complainant need produce evidence only to rebut. Because of this conflict, I place this case before a Division Bench for an authoritative decision dissolving the tie. 2. Because of this conflict, I place this case before a Division Bench for an authoritative decision dissolving the tie. 2. This revision raises the question whether even without calling on the party at whose instance a conditional order was passed under S.133 of the Criminal Procedure Code to let in evidence to substantiate his allegations that order can be made absolute as soon as the person against whom the order was passed defaults to let in evidence to substantiate his objections. Our learned brother Mr. Justice Madhavan Nair in Balan v. State of Kerala 1966 KLT. 1100, held that it could be done. In Ambi v. State of Kerala 1961 KLT 617, Anna Chandy J. took the opposite view and that gains support from the decisions in Sankaran v. Kunjukrishnan, 1968 KLT. 859, Thomas Varkey v. Idiculla John ILR.1951 TC 123, In re Ramsing 1900-II-Bombay Law Reporter 818, Lal Behari v. Jatindra Chandra AIR. 1949 Cal. 37, Rameswar v. Emperor AIR. 1939 Bom-92, Attar Singh v. Hari Singh 28-1927 Criminal Law Journal 60, Jagan Nath Prasad v. Emperor 28-1927 Criminal Law Journal 510, Akhoy Sardar v. Lalchand Sarkar 28-1927 Criminal Law Journal 859 and srinath Roy v. Anudai Halder ILR. 24 Cal. 395. 3. Madhavan Nair J. relied upon the language of S.137 (2) and (3) to reach his conclusion. Those Clauses in S.137 speak of the Magistrate's obligation to stop all further proceedings if he is satisfied that the conditional order is not reasonable and proper and to make that order absolute if he is not so satisfied. Prima facie it would appear from it that once the conditional order is passed the burden is on the person against whom that order was directed to show that it was not reasonable and proper and that if he does not adduce evidence to substantiate it that order has to be made absolute. In that view the observation in Balan v. State of Kerala 1966 KLT. In that view the observation in Balan v. State of Kerala 1966 KLT. 1100 that after the conditional order was passed the satisfaction required on the part of the Magistrate was of the unreasonableness and impropriety of the order and the conclusion that in the absence of evidence on the side of the party against whom the order was passed the order could be made absolute without taking the evidence of the party at whose instance that order was passed, if we may respectfully say so, may be quite justified. But those provisions in S.137 do not stand isolated. They have to be read along with the remaining provisions in the same Section and the provisions in the remaining Sections which deal with Public Nuisances and if so read it is clear that even after the party against whom the conditional order was passed defaulted to let in evidence to substantiate his objections that order could not be made absolute without taking the evidence of the other party at whose instance the proceedings were started. 4. Let us now examine the relevant provisions in the Criminal Procedure Code. It is Chapter X containing S.133 to 143 that deals With Public Nuisances. S.140 to 143 are not relevant for the present purpose because they deal with the execution of the final order, issue of injunction pending inquiry and similar matters. S.133 provides for magistrates passing conditional orders on receiving a police report or other information and on taking such evidence, if any, they think fit. That Section also provides that in the conditional order the magistrate shall require the person causing the nuisance to appear before him or some other competent magistrate to move to have the conditional order vacated or modified in one or the other of the modes provided for in the succeeding Sections. S.134 to 139A deal with the steps to be taken after the stage of the passing of the conditional order. At the conclusion of the inquiry 3 alternatives are given to the magistrate. He can either stay the proceedings under S.139 A (2) until the matter has been decided by a competent civil court or drop all further proceedings under S.137 (2) or make the conditional order absolute under S.137 (3) S.134 says how service is to be made of the conditional order on the person against whom it was passed. He can either stay the proceedings under S.139 A (2) until the matter has been decided by a competent civil court or drop all further proceedings under S.137 (2) or make the conditional order absolute under S.137 (3) S.134 says how service is to be made of the conditional order on the person against whom it was passed. After the order is served on the person against whom it was passed he can, if he has no objections to the order, comply with it. If he has objections he has either to appear before the magistrate and show cause against the order or apply to him to appoint a jury to try whether the passing of the order was reasonable and proper. S.138 and 139 deal with the procedure-relating to the appointment and verdict of the jury. If the person against whom the conditional order was passed neither complies with the order nor appears and shows cause nor applies for appointment of jury penalty is provided for in S.136. If he appears before the Magistrate it is obligatory on the part of the Magistrate under S.139A (1) to question him to ascertain whether he denies the existence of a public right in the way, river, channel or place for which the conditional order was passed. If he denies the existence of any such right, the Magistrate has to inquire into the matter under S.139A (1). The first thing that he has to do in that inquiry is to find out whether there is reliable evidence in support of the denial of the public right. If there is such evidence he should under S.139A (2) await the decision of a competent civil court and stay all further proceedings. If the person against whom the conditional order was passed, on being questioned by the Magistrate fails to deny the existence of the public right or after making such denial fails to adduce reliable evidence in support of such denial he would not in the subsequent proceedings be permitted to make denial of any such public right. The existence of such public right would not in that case be allowed to be inquired into by the jury also appointed on his application. The existence of such public right would not in that case be allowed to be inquired into by the jury also appointed on his application. They are the only penalties provided for in S.139A (3) for failure to deny the existence of a public right after appearance before the Magistrate or having made such denial to adduce reliable evidence in support thereof Those provisions do not authorise the Magistrate to make the conditional order absolute if the person against whom that order was passed fails to substantiate his denial of the public right. It is after the inquiry contemplated by S.139A (1) and (2) about the substantiation of the denial of the public right by the person against whom the conditional order was made that the stage of inquiry contemplated by S.137 starts. That is clear from the words "the Magistrate shall, before proceeding under S.137 or 138, inquire into the matter" appearing in S.139A (1). This is how S.137 and 139A read: "137. (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. "139A. (1) Where an order is made under S.133 for the purpose of preventing obstruction, nuisance or danger to the public in the use of any way, river, channel or place, the Magistrative shall, on the appearance before him of the person against whom the order-was made, question him as to whether he denies the existence of any public right in respect of the way, river, channel or place, and, if he does so, the Magistrate shall, before proceeding under S.137 or S.138, inquire into the matter. (2) If in such inquiry the Magistrate finds that there is any reliable evidence in support of such denial, he shall stay the proceedings until the matter of the existence of such right has been decided by a competent Civil Court; and, if he finds that there is no such evidence, he shall proceed as laid down in S.137 or S.138, as the case may require (3) A person who has, on being questioned by the Magistrate under sub-section (1), failed to deny the existence of a public right of the nature therein referred to, or who, having made such denial, has failed to adduce reliable evidence in support thereof, shall not in the subsequent proceedings be permitted to make any such denial, nor shall any question in respect of the existence of any such public right be inquired into by any jury appointed under S.138." Under S.137 (1) if the person against whom the conditional order was passed appears and shows cause against the order the Magistrate has to take evidence as in a summons case. Sub-sections (2) and (3) of S.137 authorise the Magistrate either to drop all further proceedings in the inquiry or make the conditional order absolute. They also give directions as to when the Magistrate can do so. He can drop all further proceedings if he is satisfied that the conditional order is not reasonable or proper. In other cases he can make the order absolute. 5. A combined reading of S.137 and 139A shows that there are 2 distinct stages in the inquiry contemplated by those Sections, the first being that under S.139A (2) and the 2nd that under S.137. Entering on the 2nd stage arises only if the party against whom the conditional order was passed defaults to adduce reliable evidence in support of his denial of the existence of a public right. In the scheme of the inquiry the proper place for the provisions in S.137 is after S.139A. Its present place above S.139A has been partly responsible for the confusion it has created. 6. Now we go straight to the question whether a Magistrate who makes a conditional order absolute under S.137 (3) can do so without taking the evidence of the party at whose instance he passed the conditional order. We are of the opinion that it cannot be done. 6. Now we go straight to the question whether a Magistrate who makes a conditional order absolute under S.137 (3) can do so without taking the evidence of the party at whose instance he passed the conditional order. We are of the opinion that it cannot be done. That is firstly because there is scope for the application of S.137 (2) and (3) only after the conclusion of the inquiry contemplated by S.137(1) and the provision in S.137 (1) that in an inquiry under it evidence should be taken as in a summons case indicates that the Magistrate has to take the evidence of the party at whose instance the conditional order was passed before the disposal of the case. S.244 which comes in Chapter XX dealing with the trial of summons cases says that the Magistrate should hear the complainant, if any, and take all such evidence as may be produced in support of the prosecution and thereafter take the evidence adduced by the accused. The words "evidence in the matter" employed in S.137 (1) mean evidence of the complainant. Secondly, at the beginning of the stage of the inquiry under S.137 (1) the only material before the Magistrate in support of the conditional order he passed is the information or exparte statements he received under S.133 (1) and they cannot take the place of legal evidence for passing a final order. And thirdly, if even without taking the evidence of the party at whose instance the conditional order was passed that order is to be made absolute on the default to let in evidence of the party against whom it was passed it works out as a penalty for his default and such a penalty is not provided for in S.139A (3) which deals with penalties for defaults in such cases. We therefore, respectfully agree with the statement of the law on the subject in Ambi v. State of Kerala 1961 KLT. 617 and disagree with that in Balan v. State of Kerala 1966 KLT.1100. 7. In the result, we allow this revision petition and set aside the final order of the Executive First Class Magistrate, Trivandrum which was confirmed in revision by the Sessions Judge, Trivandrum. The matter is remitted to the Executive First Class Magistrate for proceeding afresh in the light of the observations made above. Allowed.