In Re: Debdas Haldar and Others

J.N. Chaudhuri, J.—This application u/s 401 and 482 of the Code of Criminal Procedure, 1973 is directed against an order dated 8.6.1984 passed by the learned Executive Magistrate, Basirhat in M. P. No. 267 of 1984 making an order dated 19.3.84 passed by the said learned Executive Magistrate, absolute.

The said order dated 19.3.84 reads as follows :

Seen petition u/s. 133 Cr. P. C. Heard Ld. lawyer for the 1st Party and seen the report of sanitary Inspector, Baduria R. H. Circle. I am, prima facie, satisfied that the O.P. is conducting a business for elimination of heads of Prawn fishes in a thickly populated area over a P. W. D. land at Arsula under Baduria P. S., and the eliminated rotten heads of the prawn are spreading unhealthy ordours in the surroundings causing discomfort of the General Public and an unhealthy atmosphere in the locality. I am also satisfied that conduct of such business is injurious to the comfort and health of the General Public. I draw up proceedings U/s. 133 Cr. P. C. prohibiting conduct of the said business in the said place immediately. Causes, if any, be shown by the O. Ps. by the next date. To 10.4.84.

Thereafter, the ordersheet of the learned Magistrate reads as follows "10.4.84 : 1st party is present. 2nd party appears and prays for time to S/C. To 30.4.84. 30.4.84 Both parties present. O. Ps. file S/C. Seen show cause. For hearing to 2.6.84, 2.6.84 To 8.6.84. 8.6.84 1st party present and heard. O. Ps. absent without any tadbir. Seen the S/C filed by the O. Ps. and the copy of order of Hon''ble High Court. No further order passed by Hon''ble High Court has been submitted by the O. Ps. Moreover, O. Ps. are absent to-day without any tadbir. I do not find any material in the S/C submitted by the O. Ps. for variation of my order U/s. 133 Cr. P. C. passed on 10.3.84. Hence, the order passed on 19.3.84 u|s. 133 Cr. P.C. is made absolute. Inform O. Ps. and O.C. Baduria P.S. for information and necessary action. O.C. Will ensure compliance of the order of prohibition of the conduct of the alleged business."

Mr. Sengupta, the learned Advocate for the petitioners; has contended that the provisions of Section 138(1) of the Code of Criminal Procedure, 1973 have not been complied with by the learned Magistrate, since, the opposite party/petitioner herein appeared and filed a "show-cause" against the order dated 19.3.84 passed u/s 133 of the said Code. He has submitted that noncompliance with the provisions of Sec. 138(1) of the said Code amounts to an illegality and is not curable as an irregularity. In short, he has submitted that the learned Magistrate was bound to take evidence in the matter as in a summons case.

Section 138 of the said Code reads as follows :-

Procedure where he appears to show cause. 138 (1). If the person against whom an order u/s 133 is made 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 either as originally made or subject to such modification as he considers necessary, is reasonable and proper, the order shall be made absolute without modification or, as the case may be, with such modification. (3) If the Magistrate is not so satisfied, no further proceedings shall be taken in the case.

Mr. Sengupta has submitted that from the order dated 30.4.84, it is clear that the opposite party appeared and showed cause against the order us. 133 of the said Code passed on 19.3.84 and so, without taking evidence in the matter as in a summons-case as enjoined by Section 138 of the said Code, the learned Magistrate erred in making the order passed on 19.3.84 u|s. 133 of the said Code absolute, by his order dated 8.6.84.

In support of his submission, he has relied upon the case reported in Krishna Jillai Bhaskaran Nair Vs. Verghese Samuel, , which is a judgment of a Single Bench of the Kerala High Court. In this case, it was held that under Sec. 137 of the old Code, (which corresponds to Sec. 138 of the New Code) even in cases where the person concerned appears and files his objection, but does not pursue the same, the learned Magistrate has to take evidence. This case has relied on a decision of this Court reported in AIR 1949 Cal 57 - 49 Cr. L. J. 608 (Lal Behari Vs. Jatindra Chandra), where it was held that in the case of a Public right falling under Sec. 139-A of the Old Code (corresponding to Sec. 137 of the New Code), if the person against whom proceedings are initiated appears and shows cause, the court is bound to take evidence as directed in Sec. 137 of the Old Code.

Mr. Sengupta has also relied on two other cases one reported in Murari Lal Vs. Ram Swaroop and Others, , which is a Single Bench decision of the Rajasthan High Court and the other reported in Balakrishna Rao Vs. State of Mysore and Others, , which is a Single Bench decision of the Mysore High Court. In both these cases it has been held that the provisions of Sec. 137 of the Old Code (which corresponds to Sec. 138 of the New Code) requiring the Magistrate to take evidence as in a summons-case once the opposite party appears and shows cause against the conditional order made u|s. 133 is mandatory. The case reported in Murari Lal Vs. Ram Swaroop and Others, has placed reliance on three decisions of this Court reported in Raja Khan and Another Vs. Emperor, and 11 Cr. L.J. 1.

Mr. Chakraborty, the learned Advocate for the State has submitted that he cannot support the impugned order dated 8.6.84.

Mrs. Gupta, learned Advocate for the opposite party No. 1, has asked the Court to consider as to whether the noncompliance with the provisions of Sec. 138(1) of the New Code is an irregularity which is curable. She has relied upon a decision reported in Anand Kishore Vs. State, , which is a Division Bench Decision of the Allahabad High Court. In this case, it was held that in a case u|s. 139-A of the Old Code if the person concerned files a written statement challenging the existence of a Public right, the oral questioning by the Magistrate as required under sec. 139-A(1) Old Code may be a mere formality, and failure to question such a person would be an irregularity curable u|s. 537 of the Old Code and would not vitiate the enquiry.

In my view, the order dated 30.4.84 clearly shows that the opposite party therein appeared and showed cause by filing the "show cause". In fact, in that order the learned Magistrate has recorded, "Seen show cause". Respectfully relying on the decisions cited by Mr. Sengupta, learned Advocate for the petitioners, I hold that the provisions of Sec 138(1) of the New Code to the effect that "if the person against whom an order u|s. 133 is made appears and shows cause against the order, the Magistrate shall take evidence in the matter as in a summons-case" are mandatory, and the failure to comply with the same is an legality and not an irregularity which can be cured. The case reported in Anand Kishore Vs. State, , relied upon by Mrs. Gupta is with regard to the provisions under Sec. 139-A of the Old Code which (corresponds to Sec 137 of the New Code). This decision cannot have any application in the face of the positive requirement that "the Magistrate shall take evidence in the matter as in a summons-case" as laid down by Sec. 138 of the New Cede.

In the result, I set aside the impugned order dated 8.6.84 and remand the case back to the trial court which will, since the opposite parties therein have appeared and shown cause, now proceed to take evidence in the matter as in a summons-case, in accordance with law, as enjoined by Section 138 of the New Code and proved in accordance with law thereafter.

It may be incidentally noted that the impugned order dated 8.6.84, which has not been set aside, was not in accordance with law, not only because of the. non-compliance with the provisions of Sec. 138(1) of the New Code, but also because the said order did not comply with the requirements of Sec. 141(1) of the New Code, since the Magistrate did not require the opposite parties to perform the act directed by the order within the fixed time and inform the opposite parties that in case of disobedience they would be liable to the penalty provided by Sec. 138 of the Indian Penal Code. The learned Magistrate is directed to conclude the proceedings as expeditiously as possible. This application is thus disposed of.