P L D 1975 Peshawar 199 (PLP)

to remove or support such tree ; or to alter the disposal of such substance ; or to fence such tank, well or excavation, as the case may be; or to destroy, confine or dispose of such dangerous animal in the manner provided in the said order; or, if he objects to do, to appear before himself or some other Magistrate of the first or second class at a time and place to be fixed by the order, and move to have the order set aside or modified in the manner herein after provided. (2) No order duly made by a Magistrate under this section shall be called in question in any civil Court. Explanation.-A "public place" includes also property belonging to the State, camping grounds and grounds left unoccupied for sanitary or recreation purposes." Now by reading the various provisions of this section together, it would be clear that if a District/Sub-Divisional Magistrate or a Magistrate of the First Class, is, upon a police report or other information, satisfied that an unlawful obstruction or nuisance has been created, he "may make a conditional order requiring the person causing such obstruction or nuisance" to remove it within a specified time. But by the use of expression "may" in that section, however, the Legislature seems to have left it to the discretion of trial Magistrate to pass or not to pass a conditional order in a case filed before him. And the rationale of this policy is understandable. A perusal of the section would show that it is meant to deal with a variety of situations, such as when a person has, as in this case, erected on a public path a wall or else is responsible for public nuisance of a continuing nature, i.e. carrying on in a residential locality trade of obnoxious character as a result of which the peace of inhabitants is disturbed, say, by constant noise or the emission of foul smell. However, a case falling in the first category would be evidently different from the one covered by the latter, inasmuch as respondent would, by erecting a wall on public path, have already confronted the public with fait accompli, whereas in the other case the nuisance would be of a continuing nature to arrest which interim measures would be required to be taken In the public interest. Section 133, Cr. P. C. however, does not provide for such an eventuality and the proper section under which a Magistrate would be able to take interim action would be section 142, Cr. P. C. which reads as under :- "

142. Injunction pending inquiry.-(1) If a Magistrate making an order under section 133 considers that immediate measures should be taken to prevent immediate danger or injury of a serious kind to the public, he may, whether a jury is to be, or has been, appointed or not, issue such an injunction to the person against whom the order was made, as is required to obviate or prevent such danger or injury pending the determination of the matter. (2) In default of such person forthwith obeying such injunction, the Magistrate may himself, use, or cause to be used, such means as he thinks fit to obviate such danger or to prevent such injury. (3) No suit shall lie in respect of anything done in good faith by a Magistrate under this section." There seems to be prevalent, however, a common misconception about the scope of section 133, Cr. P. C. It was contended at the B it that in each case, coming up before a Magistrate under section 133, Cr. P. C., he shall have no option but to pass a conditional order directing respondent to appear before him on a specified date to show cause as to why he should not be made to undo public nuisance as also that in the meantime he should prevent the nuisance in question from being a source of obstruction or of annoyance or discomfiture to public. Now this argument would appear to be a contradiction in terms, inasmuch as how would a Magistrate, in a case of this nature in which respondents are alleged to have already blocked the passage of B petitioners by raising a wall thereon, be able to pass a conditional order of that type without affording to respondents an opportunity to be heard against the complaint of other side. It is true that in a case of public nuisance in which an obnoxious trade is said to be carried on in a residential locality, it would be imperative for the Magistrate to pass an interim order under section 142, Cr. P. C. directing respondents to cease all his objectionable trade operations forthwith. But in a case of the present nature, how could he possibly order the demolition of disputed wall without hearing respondent 7 Seen in this context, therefore, it would be easy to appreciate that when a case is brought to the notice of a Magistrate under section 133, Cr. P. C. he will have to examine it carefully. And if he is satisfied, he may issue to respondent a notice to appear before him on a specified date to show cause as to why he should not be made to remove the public nuisance. But this would not mean that in each case, he would be required to pass an interim order under section 142, Cr. P. C. In point of fact, this conclusion would appear to be supported by the language of sections 133, 135, 136, 137 and 139, Cr. P. C. which (except for section 133 which has already been reproduced) respectively read as under :

"

135. Person to whom order is addressed to obey or show cause or claim jury.-The person against whom such order is made shall- (a) perform, within the time and in the manner specified in the order, the act directed thereby ; or (b) appear in accordance with such order and either show cause against the same, or apply to the Magistrate by whom it was made to appoint a jury to try, whether the same is reasonable and proper.

136. Consequence of his failing to do so.

If such person does not perform such act or appear and show cause or apply for the appointment of a jury as required by section 135, he shall be liable to the penalty pres cribed in that behalf in section 188 of the Pakistan Penal Code, and the order shall be made absolute.

137. Procedure where he appears to show cause.-(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. 138 .

139. Procedure where jury finds Magistrate's order to be reasonable. (1) If the jury or a majority of the jurors find that the order of the Magistrate is reasonable and proper as originally made, or subject to a modification which the Magistrate accepts, the Magistrate shall make the order absolute, subject to such modification, if any." Now if a conditional order under section 133, Cr. P. C. was meant to be equated with an order under section 141, Cr. P. C. then the Legislature would not have left it to the discretion of respondent to obey or not to obey it. Bit by examining the schema of sections 135, 136, 137 and 139, Cr. P. C. however, this is precisely what the Legislature seems to have allowed him to do. And so it would follow that the orders passed under these two sections would be entirely different in their scope and purpose. A look at section 133, Cr. P. C. would make it clear that when respondent is served with a conditional order passed thereunder, he may remove the public nuisance or else appear it before Magistrate, deny the accusation made against him and ask him for the appointment of a jury to go into the disputed question. In other words, so long as the disputed question raised by him has not been looked into by they jury, a conditional order, unlike an order passed under section 142, Cr. P. C. has to remain unexecuted. From this it would, therefore, be obvious that' there exists evidently fundamental distinction between an order passed under section 133, Cr. P. C. and the one under section 142, Cr. P. C. Bur even so, a word may still be said on the subject. Assuming for the sake of argument that in a given case a Magistrate has, in his order under section 133, Cr. P. C. directed respondent to appear before him on a specified date, which has to be reasonable, to show cause about the accusation made against him, and in the meantime asking him to undo the public nuisance or else to stop his objectionable operations forthwith, without passing any order, however, under section 142, Cr. P. C. Now the avowed object for which he would be deemed to have passed such order would be to force respondent in the interest of public to undo the nuisance. But then respondent would have the right to disregard the said order under sections 133, 135, 137 and 138, Cr. P. C. provided he appears before the Magistrate on the specified date, denies the accusation made against him and asks for the appointment of a jury. In this view, therefore, the requirement of an order, which a Magistrate is required to make under section 133, Cr. P. C. would appear to be that first he must apply his mind to the complaint/information laid before him and if he is satisfied that a case has been made out for the exercise of his jurisdiction, he should then issue a notice to respondent to show cause on a specified date why he should not be made to undo the public nuisance. Now an order of this nature would be a conditional order within the meaning of section 133, Cr. P. C. for if respondent does not appear in the proceedings or else has not been able to show cause against the order, all that the Magistrate would then do is to make his order absolute to carry out which would then be the obligation of respondent failing which it can be executed by the Magistrate himself. I can conceive of a case, however, in which a Magistrate has, upon a complaint/information brought to his Court, passed an order under section 133, Cr. P. C. simply saying "notice to respondent". Now an order of this nature perhaps would be objectionable, as when it is made absolute under sections 136 and 137, Cr. P. C. it would not only be meaningless but would be incapable of execution. In an eventuality such as this, therefore, perhaps respondent would be able to argue that the learned Magistrate has failed to exercise jurisdiction vested in him by law. But then this discussion, in so far as the case in hand is concerned, would appear to be academic. The conditional order of learned Magistrate, passed under section 133, Cr. P. C. in this case, has been reproduced elsewhere in this judgment. And by looking at it, it would appear to be a proper order within the meaning of that section. In this view, therefore, the learned Sessions Judge seems to have misconceived the effect of that order. And thus the reference made by him to this Court would have no force in it. Assuming, however, that the order in question was defective in some measure, section 537, Cr. P. C. would have cured it, as the parties in this case were allowed full opportunity to adduce their respective evidence and then argue the case on merit. However, since the conditional order of learned Magistrate in this case has been found by me to be in accord with the requirement of section 133, Cr. P. C. reference to section 537, Cr. P. C. would not arise. In view of this rather lengthy discussion, this reference has no force in it and the same is dismissed. S. A. H. Reference dismissed.