Juje D'Silva vs Kashmir D'Silva

Byers, J.—The case which has given rise to this reference arose u/s 133 of the Code of Criminal Procedure. By a preliminary order issued under that section the owner of two trees was called upon to show cause why he should not be directed to take certain steps to prevent them from damaging a house close by. One of the trees is a cocoanut tree and the notice issued u/s 133 of the Code contemplated either cutting it or securing it with a wire. Eventually, the Stationary Sub-Magistrate ordered the respondent in the proceedings to cut the tree, giving him no option to secure it with wires as he found that this remedy would not serve the purpose on account of the heavy winds prevailing at certain times of the year. The reference has. arisen on the contention that it was beyond the power of the learned Magistrate to modify the provisional order.

The order has been made absolute u/s 137 (3) of the Code, which directs that if the Magistrate is not satisfied that the order is not reasonable and proper, " the order shall be made absolute." u/s 135 of the Code the respondent in the proceedings may apply for a jury to try the issue whether the order is reasonable and proper. In such a case the final order is passed u/s 139 of the Code, which confers jurisdiction upon the Magistrate to make the order absolute subject to any modification found necessary. Thus it will be seen that when the Magistrate sitting alone disposes of the matter u/s 137, he has no jurisdiction to modify the original order. It is only when silting with a jury that he has power to modify the order before making it absolute.

In the result, the reference is accepted and the final order will include the alternative provision of securing the tree with a wire as contemplated by the order first issued u/s 133 of the Code.