Kailash Chandra Jain and Others vs S.M. Poddar and Others

G.M. Lodha, J.—Heard the learned Counsel for the petitioners and the respondents.

In proceedings u/s 133, Cr. P.C. an order was passed on 17-2-81 to remove the nuisance against the petitioners Kailash Chandra Jain and M/s. Rajshree Pictures Private Limited, Jaipur. On 19-5-81, it was noticed by the Court that in compliance of the order dated 17-2-81 the alleged nuisance has been removed. The Court then directed that in view of this, the proceedings u/s 135, Cr. P.C. for taking evidence of the parties would now be taken. Accordingly, the Court directed that evidence would now be taken on 26-5-81.

It is common ground that the non-petitioners, S.M. Poddar and others have moved another application before the lower Court u/s 142, Cr. P.C. along with the application u/s 133, Cr. P.C. It is also common ground that no order was passed on the application u/s 142, Cr. P.C. and both the parties agree that till now no order has been passed on the application u/s 142, Cr. P.C.

The apprehension of the petitioners is, that since he has once complied with the order, he would be liable for contempt or other proceedings, in case any nuisance is done, and, therefore, he prays that the order dated 19-5-81 should be quashed. The precise prayer in this application u/s 482, Cr. P.C. reads as under:

It is, therefore, prayed that your Lordships be pleased to accept this application and direct the learned Magistrate to first adjudicate upon the application u/s 142. Cr. P.C. and meanwhile stay the operation of the order dated 19th May, 1981 during the pendency of the application and pass such and further orders as may be deemed just and proper in the circumstances of the case.

Contrary to it, Mr. Tibrewal''s contention is that once the order was complied with, it automatically become absolute, and there was no occasion of passing an order u/s 142, Cr. P.C. It was also argued that the grievance, if any, could have been by the non-petitioners S.M. Poddar and others, because the Court below did not expressly order that the conditional order dated 17-2-81 is made absolute.

Mr. Tibrewal''s contention is, that once an order u/s 133, Cr. P.C. is passed and complied with, there is no necessity of getting an order u/s 142, Cr. P.C.

It appears to me that there has been some sort of tripartite agreement, which consists of the lower Court as well as the counsel appearing before it on both sides, in obtaining the order dated 19-5-81, as it has been worded as a consent order, and none of the counsel appearing there has filed an affidavit controverting their admission or concession mentioned in it.

7A. The scheme of proceeding u/s 133, Cr. P.C. no doubt contemplates that the party against whom a conditional order u/s 133, Cr. P.C. is passed should either comply with it by removing the nuisance or if he objects so to do he should appear and show cause why the order should not be made absolute.

The interesting aspect of the present controversy is that in this case the petitioners instead of exercising their option in terms of Section 133, Cr. P.C. resorted to showing cause why the order should not be made absolute and at the same time complied with the order by removing the nuisance, a situation which is not literally contemplated by Section 133, Cr. P.C. The fact that u/s 135, Cr. P.C. the Magistrate started proceedings further confirms that the Magistrate has taken notice of the cause shown by the petitioners against the conditional order. It is to be noted that u/s 135, Cr. P.C. again two contingencies are contemplated; (1) perform within the time and in the manner specified in the order, the act directed thereby; or, (2) appear in accordance with such order and show cause against the same.

The proceedings which are now going on are according to Section 138, Cr. P.C. where evidence is said to be taken. Once the Magistrate takes recourse to Section 138, Cr. P.C. by directing the recording of evidence, the stage of making the order absolute would arise under Sub-clause (2), which reads as under:

(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.

It would thus be seen that the stage of making the order absolute, on the evidence of both the sides, or dropping the proceedings would arise after evidence u/s 138 Cr. P.C. is recorded.

In the instant case, in the objections taken by the petitioners the existence of public right is denied, and once it is denied the Magistrate has got no option but to adjudicate it on the basis of evidence to be recorded. I am, therefore, convinced that simply because compliance was made of the conditional order, the jurisdiction of the Magistrate to adjudicate the question whether there was any public right and whether there was any public nuisance warranting the order to be made absolute u/s 138, Cr. P.C. is not ousted.

Sections 139 and 140, Cr. P.C. provide for the procedure for recording the evidence or making investigations and inspections for the purpose of enquiry u/s 138, Cr. P.C.

It is to be noted that an order passed u/s 133, Cr. P.C. is in conditional form and can become absolute either u/s 136, Cr. P.C. if no cause is shown or u/s 138, Cr. P.C. if cause is shown, but after recording the evidence the Magistrate is satisfied that conditions of Section 133, Cr. P.C. exist warranting the making of the conditional order absolute.

In the instant case, the admitted factual position is, that no order u/s 136, Cr. P.C. has been passed making the conditional order u/s 133, Cr. P.C. absolute. Whether the Magistrate should have passed such an order or not is not the controvercy before me, because the non-petitioners never made a grievance that the order dated 19-5-81 should not have been passed, and that the conditional order should have been made absolute. If they were not satisfied by the action of the Magistrate in not making the conditional order absolute on 19-5-81, this order should have been challenged by them, which has not been done. In the situation of this nature, I am convinced that the conditional order has not been made absolute u/s 136, Cr. P.C. and consequently the consequences of Section 141, Cr. P.C. which can follow only after the order is made absolute either u/s 136 or 138, Cr. P.C. cannot be availed of in this case during the pendency of the case.

The resultant position is that in case S.M. Poddar and others feel that the conditional order having not been made absolute, they want some relief for restraining the respondents from repeating or continuing nuisance during the pendency of the case, the remedy is to press the application u/s 142, Cr. P.C. If that is done, the Magistrate concerned would be under legal duty to hear both the sides and adjudicate upon it, Admittedly, till today the application u/s 142, Cr. P.C. is pending and has not been adjudicated so far.

In view of the above discussion, I am of the opinion that the application of the petitioners u/s 482, Cr. P.C. is misconceived having been filed under mis-apprehension of law, I have clarified the legal position in respect of the present proceedings, and in view of the above, it would be for the parties concerned to take appropriate steps before the Magistrate concerned, in case the situation so warrants. I am convinced that there is no ground for quashing the order dated 19-5-81, nor there is any occasion for directing the Magistrate to decide the application u/s 142, Cr. P.C. because it would be for the petitioners to move that court to decide it, in case any such situation arises.

With the above observations, the application is dismissed.