Maharaja vs The Sub Collector/The Sub Divisional Magistrate and V. Subramaniam

K. Mohan Ram, J.—The above revision has been filed against the order dated 12.07.2007 made in Na.Ka. No. 8720/2007/2007/A6 on

the file of the Sub Collector / Sub Divisional Magistrate, Gobichettipalayam. The order that is sought to be revised has been passed u/s 133 of the

Criminal Procedure Code.

The main contention of the petitioner is that no enquiry as contemplated u/s 138 of the Criminal Procedure Code has been conducted by the

Sub-Divisional Magistrate before passing the order. It is further contended that u/s 136 of the Criminal Procedure code the preliminary order can

be made absolute only if a person fails to appear on receipt of the preliminary order. In support of the above said contentions the learned Counsel

for the petitioner relied upon the following decisions:

(i) Sesamma Joy @ Chakko Mathew and Another Vs. Tahsildar, , wherein in paragraph 4 it is observed as follows:

...A causal reading of the above section of law would clearly show the fact that before proceeding in accordance with the provisions contained

in Section 134 to 136 of the Code of Criminal Procedure, it is incumbent on the part of the Magistrate concerned not only to identify the type of

nuisance alleged to have been committed, but also specifically deal with and spell out in the show cause notice to be given to the person

perpetrated and then adequate time is expected to be given to such person to remove such nuisance as provided in Clauses 1 to 6 of the proviso

to Section 133 of the Code of Criminal Procedure and only on the failure to comply with the directions then, for the reasons to be recorded, he

will make the order absolute and proceed further as provided under Sub-sections of the Code of Criminal Procedure. Or otherwise, for any

reason, if the said procedure has not been followed, the order then would become totally vitiated for the violation of the procedural mandate,

simply for the reason that the procedure laid down u/s 133 of the Code of Criminal Procedure is based on the principles of natural justice and

equality.

(ii) P. Preman Vs. M.P. Andy, , wherein in paragraph 5 it is observed as follows:

...The Executive Magistrate, while considering the cause shown by the aggrieved person is under a legal obligation to inquire into the matter

before proceeding u/s 138, Cr.P.C. In other words, the inquiry contemplated u/s 137 shall precede the further proceedings u/s 138 of the Code,

as could be seen from the wording of Section 137(1) itself. Section 137 of the Code contemplates the Executive Magistrate conducting an enquiry

as provided for therein on the appearance of the person against whom an order u/s 133 Cr.P.C. was made and the Executive Magistrate has to

question him as to whether he denies the existence of any public right in respect of the way, river, channel or place in respect of which the order

had been made. On such questioning if the concerned aggrieved person denies such right, then the Magistrate before proceeding u/s 138 should

inquire into the matter.

Countering the said submissions learned Counsel for the second respondent submitted that the petitioner had sent his representation dated

10.07.2007 and the same has also been considered by the Sub Divisional Magistrate and only after considering the same the impugned order has

been passed and as such the contention of the petitioner that the procedure contemplated in Section 138 of the Criminal Procedure Code has not

been followed is not sustainable.

I have carefully considered the above said submissions made by the learned Counsel on either side. A perusal of the materials on record and the

impugned order shows that no enquiry whatsoever has been conducted by the Sub Divisional Magistrate. The procedure contemplated in Sections

133 to 138 of the Criminal Procedure Code have not been followed, therefore, without proper enquiry and without proper application of mind and

without serving notice on the affected parties, the Executive Magistrate has chosen to pass the impugned order. Learned Counsel for the second

respondent is unable to counter the submissions made by the learned Counsel for the petitioner. If the ratio laid down in the above said decisions,

which was relied upon by the learned Counsel for the petitioner, is applied to the facts of this case, the impugned order cannot stand to scrutiny

and has to be necessarily set-aside.

For the said reasons, the impugned order dated 12.07.2007 made in Na.Ka. No. 8720/2007/2007/A6 on the file of the Sub Collector / Sub

Divisional Magistrate, Gobichettipalayam, is hereby set-aside and the criminal revision case is allowed with a direction that the Sub Collector / Sub

Divisional Magistrate, Gobichettipalayam, Erode District, shall follow the procedures contemplated in Sections 133 to 140 of the Criminal

Procedure Code and conduct an enquiry afresh after giving proper opportunity to all the parties concerned and pass appropriate orders on the

merits of the case. It is made clear that this Court has not expressed any opinion on