P L D 1964 Supreme Court 391 (PLP)

"Ask Arab Ali to open the drain by 26‑7‑61 and report compliance, otherwise he will be prosecuted straightaway." This order, which was presumably made under section 142 (1) of the Criminal Procedure Code, was served on the appellant on the 22nd of July 1961, but on the 24th of July 1961, he appeared before the Sub‑Divisional Officer and filed a petition objecting to the carrying out of the said mandatory injunction. In this petition he denied that any such drain ever existed and stated that the waste water from the houses in the locality were drained into a khal by the south of the house of the respondent No. 5 and that obstruction had, in fact, been caused by a portion of the khal passing by the south of the said respondent's house being filled up. He also stated that the alleged drain was also the subject matter of a civil litigation, commenced against him by the maternal aunt of the said respondent No. 5 for, inter alia, similar injunction for restraining the appellant from causing any obstruc tion to the alleged khal. On hearing the appellant and perusing his objection the Sub- Divisional Officer passed on the same day the following order :‑ "Let the matter be thrashed out in section 133, Cr. P. C. proceeding. Recall the notice issued on 21‑7‑61 for excavation of khal." On the 26th of July 1961, however, the respondents filed another application before the Sub‑Divisional Officer again praying for action under section 142 (1) of the Cr. P. C. This came up for consideration, along with the cause shown by the appellant in the proceeding under section 133, before Mr. S. Uddin who was again taking the Sub‑Divisional Officer's file. He took the view that "in order to prevent greater disaster to the common people of the area in the form of epidemics etc." immediate injunction under section 142 (1) of the Criminal Procedure Code was necessary and, accordingly, directed the appellant to open the drain by the 4th of August 1961, failing which action was threatened to be taken against him under subsection (2) of the said section. In this order the learned Magistrate, however, also went on to direct as follows :‑ "Considered also the causes shown by the O. P. who has denied the existence of the drain or any public right over it. This necessitates taking of evidence under section 139‑A, Cr. P. C. which will be done after the injunction order under section 142 (1), Cr. P. C. is complied with. To 4‑8‑61. (Sd.) S. Uddin S. D. O." The appellant moved the Sessions Judge of Sylhet against this order of Mr. S. Uddin contending that the same was without jurisdiction and ultra vires, but without any success. Thereafter, on the 29th of September 1961, the matter again came up before the Sub‑Divisional Officer, Mr. A. Rahman, himself and he allowed the appellant a further two days' time to remove the obstruction as directed by Mr. S. Uddin on the 27th of July 1961. The appellant on the 2nd of October 1961, made another effort to have the order vacated by moving the Sub‑Divisional Officer and pointing out to him that as a civil suit in respect of the same drain was also pending in the Court of the Munsif, First Court, Sylhet, and that in that suit an order had been made for the maintenance of the status quo by keeping the drain in its running condition, it was manifest that there was no blockage of the drain. The Sub‑Divisional Officer took the view that as the civil suit was not between the same parties, that order was not or much assistance. In any event, since the proceedings under section 133 of the Criminal Procedure Code, had been occasioned due to the blockage of the drain in spite of the order of the civil Court for the maintenance of the status quo, the order should be parried out. The Sub‑Divisional Officer, however, gave a further 2 days' time to the appellant for the removal of the obstruction. In the meantime, the appellant moved the High Court in revision and obtained a rule as also an order staying further proceedings. This rule was ultimately heard on the 11th of April 1962, and discharged. The appellant then obtained leave from this Court on the 23rd of July 1962. Leave was granted only to consider whether the order of Mr. S. Uddin saying that evidence under section 139‑A of the Criminal Procedure Code wilt be taken after the injunction order under section 142 (1) of the Criminal Procedure Code had been complied with was warranted by law. Learned counsel appearing in support of this appeal has, however, sought to urge another ground also, namely, as to whether after the Sub‑Divisional Officer had by his order of the 24th of July 1961, recalled the notice issued on the 21st of July 1961, to open the drain, had another Magistrate any further jurisdiction to re‑impose the order of mandatory injunction under section 142 (1) of the Criminal Procedure Code. His contention is that the only justification for such a mandatory order is the prevention of immediate danger or injury of a serious kind to the public and, as such, once a Magistrate has recalled that order and directed that the proceeding should be heard on evidence, it cannot be said that the danger or fear still persists or is of such pressing nature that it must be prevented by the exercise of such summary powers. In such a case the first Magistrate recalling the order must, it is said, be taken to have abandoned the proceedings under section 142 and thereafter the only course open is to proceed by giving the person complained against an opportunity to show‑cause as to why the order should not be carried out or to ask for the appointment of a jury, as provided for under section 135 of the Criminal Procedure Code. In support of this contention he has placed reliance on a very old decision of a learned Single Judge of the Calcutta High Court in the case of The Queen v. Brojendro Lall and others ((1874) 21 W R Cr. Rul. 86). In that case on the 23rd of August 1873, the persons com plained against for obstructing a public road leading to a hat had been directed to remove the obstruction within 2 days, but on the 4th of September following when the person to whom the order was directed appeared and filed a petition alleging that the complaint originally made was false and praying for investigation by the Police, the Magistrate made over the case to another Joint. Magistrate for enquiry and disposal. The Joint‑Magistrate first called for a report from the Police to find out whether the obstruction had been removed as ordered earlier. The Police reported that the obstruction had been removed to the extent that pedestrians could pass over the pathway but portions of it were still obstructed in such a manner that passage of "hackerles" was still not possible. The Police were thereupon directed to take steps to make the road passable for "hackeries" and to send up the parties who had disobeyed the previous order. It was in these circumstances that it was held that when the first Magis trate ordered enquiry it could no longer be treated as a case in which any immediate measure was necessary. In the face of this enquiry the High Court took the view that the Magistrate must be deemed to have abandoned his proceeding for taking immedi ate measures and, therefore, proceedings ought to have been held according to the usual procedure by permitting the party complained against to show‑cause and then holding an enquiry upon evidence. In the present case there is a difference. After the Sub -Divisional Officer Mr. A. Rahman made the order recalling the notice issued on the 21st of July 1961, a subsequent petition was filed on the 26th of July 1961, praying for section under section 142 (1) of the Criminal Procedure Code and it was upon this petition that the Magistrate made the order being satisfied, as stated in his order, that it was necessary "in order to prevent greater disaster to the common people of the area in the form of epidemics etc." that immediate action should be taken. Section 142 of the Criminal Procedure Code is in these terms:‑ "142 (1) If a Magistrate making an order under section 133 considers that immediate measures should be taken to prevent imminent 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 injunc tion, 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." Its language does not indicate that the immediate measures contemplated under this section can only be taken at the time that the conditional order under section 133 is made. The power to take such immediate measures upon the wording of the section itself may be exercised whether a jury is to be, or has been, appointed or not. Now the stage at which a jury can be appointed is after the conditional order under section 133 has been made and served upon the person against whom it is made, as required by section

134. It is only after such service has been effected that the person against whom the order is made can appear either to show cause or to apply for the appointment of a jury to find out whether the conditional order is reasonable and proper. It cannot, however, be said that once the conditional order under section 133 has been made, there can be no further occasion or necessity of taking any immediate measure under section 142 (1). Section 142 indicates that such an order may be is made even after a jury has been appointed, that is to say, even after an enquiry has been commenced. It cannot also be urged that once an order under section 142 has been made in any proceeding and recalled there is no further jurisdiction to make any such order at any subsequent stage. Section 142 no doubt gives extraordinary powers to take immedi ate measures in certain circumstances but it is, nevertheless, an enabling provision vesting the Magistrate with such powers. We see no reasons, therefore, as to why it cannot be exercised when ever and as often as the necessity for its exercise arises and the circumstances mentioned in the section are shown to exist. It is not difficult to visualise a situation, in which the necessity for taking such immediate measures may arise even during the pend ency of the proceeding and more than once. Thus, if an order made under section 142 at the initial stage is complied with and the obstruction removed, but again during the pendency of the proceeding the obstruction recurrs causing imminent danger and injury of a serious kind to the public, can it be said that the Magistrate is powerless and he cannot proceed any more under this section. We are unable to accept this contention that this power once exercised exhausts itself. We see no reason why this power like any other statutory power cannot be exercised as and when the occasion for its exercise arises. We are, therefore, in agreement with the High Court that the order passed by Mr. S. Uddin on the 27th of July 1961, under section 142 (1) of the Criminal Procedure Code was not without jurisdiction. So far as the last portion of the order is concerned, namely, that evidence under section 139‑A of the Criminal Procedure Code would be taken only after the order for removal of the obstruction has been complied with, the learned counsel appearing for the respondents has frankly conceded that he can find no warrant for such a condition in the Criminal Procedure Code. The condition Imposed by the Magistrate is clearly illegal. He cannot postpone the enquiry pending compliance with the order directing the removal of the obstruction, for, if he does so, his order may itself be liable to be set aside on the ground that It was not necessary for preventing any imminent danger or injury. If the danger or injury is so imminent that it necessitates the taking of immediate measures, then section 142 of the Criminal Procedure Code itself provides that if the person against whom the order is made defaults in complying with the order, then the Magistrate may himself use or cause to be used such means as he thinks fit to obviate the danger or to prevent the injury. In addition to this, the person defaulting also exposes himself to be prosecuted for disobedience of a lawful order made by a public servant under section 188 of the Pakistan Penal Code. This by itself is an offence punishable with simple imprisonment for a period of one month or with fine or with both. Hence not only is a punishment for non‑compliance with the order provided for, but the statute itself also specifies as to what steps may be taken to ensure compliance. There can, therefore, be no justification for the Magistrate keeping the taking of evidence under section 139‑A in abeyance and this portion of the order must be set aside. The appeal is, therefore, allowed in part and the order of the Magistrate is modified by deleting there from the words "which will be done after the injunction order under section 142 (1) of the Cr. P. C. is complied with". The rest of tae order will, however, stand and the case will now go back to the Magistrate for disposal in accordance with law, that is to say, he will now proceed with the enquiry under section 139‑A of the Criminal Procedure Code. So far as the removal of the obstruction is concerned, the Magistrate will consider whether after this long lapse of time it is till necessary to pursue the matter any further. K. B. A. Appeal partly accepted.