P L D 1960 (W (PLP)

This is a reference from the Sessions Judge, Sukkur, recom mending that an order passed by the City Magistrate of Sukkor under section 137 of the Cr. P. C. be set aside, for the reason that the learned Magistrate did not record evidence in accordance with the procedure prescribed in subsection (1) of section 137 of Cr. P. C. Earlier, on an application by certain residents of the locality, the learned Magistrate had issued notice under section 133 and section 142 of the Cr. P. C. requiring the opponent namely Messrs Standard Press to remove the press as it was creating a nuisance. The opponent appeared in response to this notice and showed certain documents to the learned Magistrate. The order of the learned Magistrate shows that on the basis of these documents he was satisfied that no further proceedings were necessary. The learned Sessions Judge has remarked that under subsection (1) of section 137 of the Cr. P. C. it was incumbent upon the Magistrate to take evidence in the matter as in a summons case, and then to decide whether his previous order should be made absolute or the proceedings should be dropped.

2. In support of the reference reliance is placed on Ganga Prosadv. Khitish Chandra Sanyal (30 Cr. L J 973) where the learned Judges comprising the Division Bench held that : "A Magistrate is not competent to cancel an order for the removal of an obstruction made under section 133 Criminal Procedure Code, merely on the statement of Opposite party without recording evidence showing cause for doing the same." As against this, Mr. Sadiq, appearing for the opponent, has referred me to Shonai Pramanick v. Jogendro Shaha and another ((1878) 1 C L R 486) and Issur Chunder Nath v. Kali Churn Nath and another (8 I L R Cal. 883). These two cases related to sections 521 and 525 of the 1872 Code of Criminal Procedure and it was held therein that when a Magistrate satisfies himself that there is no necessity for proceeding further under that section, he is competent to let the matter drop. _A perusal of these two authorities however shows that there is no elaborate discussion of the provisions of the procedural section 525 and, secondly, in one of these cases namely Calcutta l aw Reports Vol. 1, 486, some evidence was recorded although not by the Magistrate who passed the order but by a subordinate Magistrate. In the other case this question was not directly an issue. I consider therefore that these two cases cannot be used as authority for the view that the recording of evidence by the Magistrate under subsection (1) of section 137 of the Cr. P. C. Gs not obligatory.

3. Mr. Sadiq has also placed reliance on certain o serva tions in Ram Dayal Misra v. Mst. Jagdamba Dabi arid another (A I R 1942 All. 942) to the effect that : "The High Court in revision will not interfere with an order under section 133 merely because the procedure followed by the Magistrate was irregular. The High Court will interfere only if substantial injustice has been done. "In the same case the following observation also appears : "The proceedings under section 133 are not intended to settle private disputes between different members of the public. They are in fact intended to protect the public as a whole against inconvenience. If a person has any private right which he wishes to enforce, he should take his troubles to the Civil Court."

4. In the case before the Allahabad High Court the Magistrate concerned had called successive reports from Revenue officials regarding an alleged encroachment and had come to the conclusion that the encroachment was very slight and did not cause any real obstruction. The nature of the irregularity in procedure is not clearly brought out in the judgment, and I cannot therefore say whether the learned Judge was dealing specifically with the question which is now before me, namely, the failure of the Magistrate to record evidence under the provisions of subsection (1) of section 137. . On the merits of that case the observations of the learned Judge regarding the undesir ability of private disputes being settled by proceedings under section 133 of the Cr. P. C. would appear to be justified, but they do not have any relevancy to the present case.

5. It seems to me that the procedural requirements laid down in section 137 of the Cr. P. C. are clear and I do not see any reason for departing from the view expressed by the Division Bench in 30 Cr. L J 973. 1 think it was mandatory for the Magistrate to record evidence as in a summons case when the Opponent had appeared before me to show cause against the order made earlier under sections 133 and 142 of the Cr. P. C. s it is, the learned Magistrate has referred to several documents in' his order dropping the proceedings, but those documents A have not been properly brought on the record as proved evidence. This is a serious defect in the procedure which vitiates the proceedings and consequently the order passed by the Magistrate, I therefore accept the reference and set aside the order of the learned Magistrate and direct that he should proceed in accord ance with law.

6. As the learned Magistrate has already expressed his opinion on the merits of the case, it would be appropriate if the matter is now heard by any other Magistrate of competent juris diction. The papers shall therefore be sent to the District Magistrate of Sukkur for necessary action. . K. B. A. Reference accepted.