Rajasthan High Court - Jaipur
Shankar Lal And Anr. vs State Of Rajasthan And Anr. on 2 November, 1989
Equivalent citations: 1989(2)WLN607
JUDGMENT N.C. Sharma, J.
1. This is a petition by Shankar Lal and Baldeva Ram under Section 482, Cr.PC for quashing the order of the Sessions Judge, Churu, dated August 14, 1989, affirming the order of the Additional District Magistrate, Churu dated April 26, 1989, passed on an application under Section 141, Cr.PC moved by Dr. Surendra Kumar, respondent No.2.
2. The facts leading to this petition are that on July 29, 1987, Dr. Surendra Kumar made an application under Section 133, Cr.PC before the Additional District Magistrate, Churu complaining there in that the carrying on of the trade or occupation of running a saw-mill by the petitioners adjoining the house of respondent No. 2 was injurious to the health and physical comfort of the residents of that locality. He prayed that the petitioners be directed not to run the saw-mill and not to cause any nuisance. Along with the application, affidavit of Ranveer Singh and some document issued by the Chief Medical & Health Officer, Churu and the Municipal Commissioner, Churu were also produced by respondent No. 2. The Additional District Magistrate examined the matter on July 29, 1987 and considered that the carrying on the saw-mill near the house of respondent No. 2 was illegal and it should be removed and the pieces of cut-wood should also be removed. He issued this conditional order requiring the petitioner to desist from running the saw-mill and to remove the nuisance and, if the object so to do, to appear before him on August 5, 1987. The petitioners appeared before the Additional District Magistrate and filed their objections on August 12, 1987. It appears that on October 31,1987, the petitioner filed an application that a compromise has been arrived at between the parties. The compromise was enclosed to the application in original. It was mentioned that there had not remained then any dispute on account of the compromise and, therefore, respondent No. 2 did not want to proceed further with the proceedings under Section 133, Cr.PC. It was prayed that the proceedings may be dropped. The compromise appended to the application stipulated that the petitioner would remove the saw-machine from the place of its present installation to a place near the wall of the adjoining school within two months. It was further stipulated that in case the petitioner would not remove the saw-mill, respondent would be entitled to get it removed through the court. It was also agreed that the petitioner will not stack logs of wood towards the side of the house of respondent No. 2. Lastly, it was provided that in case the saw-mill would not be removed within a period of two months, respondent No.2 would be entitled to recover Re. 500/- per month as damages from the petitioners. It appears from the proceedings before the Additional District Magistrate, Churu of October 31, 1987 that respondent No. 2 and the petitioners were present and both the sides agreed to the compromise. Consequently, the Additional District Magistrate dropped the proceedings under Section 133, Cr.PC.
3. How ever, the wood-cutting and the saw-machine were not removed by the petitioners. Respondents No. 2, therefore, moved an application on February 28, 1989 before the Additional District Magistrate, Churu under Section 141, Cr.PC. In this application, it was mentioned that respondent No. 2 had not complied with the terms of the compromise and it was prayed that the saw-machine may be got removed by the Court and the damages stipulated in the compromise may also be realised even by auction of the saw mill. This application bad been decided by the Additional District Magistrate, Churu on April 26, 1989. By this order, the Additional District Magistrate, giving effect to the compromise, passed an order that the petitioners should remove their saw-machine by May 7, 1989 from its present place and they should further pay an amount of Rs. 3,000/- as damages from November 1, 1988 to April 1989 to respondent No. 2. Further consequential orders to give effect to the above order, were also passed.
4. Aggrieved by the order passed by the Additional District Magistrate dated April 26, 1939, the petitioners filed a revision petition before the Sessions Judge, Churu. The Sessions Judge dismissed the revision by his order dated August 14, 1989.
5. I have heard the learned Counsel for the petitioners and the Public Prosecutor and also the learned Counsel for the respondent No. 2. It was urged by the learned Counsel for the petitioners that the Additional District Magistrate could not have passed the order dated April 26, 1989, which is nothing but an order to enforce the compromise which had been filed by the parties on October 31 1987 before him in Criminal Case No. 5 of 1987 under Section 133, Cr. P.C. Sub-section (1) of Section 141 of the Code of Criminal Procedure provides that when an order has been made absolute under Section 136 or Section 138, the Magistrate shall give notice of the same to the person against whom the order was made, and shall further require him to perform the act directed by the order within a time to be fixed in the notice, and inform him that, in case of disobedience, he will be liable to the penalty provided by Section 188 of the Indian Penal Code. Then, Sub-section (2) of the said section mentions that it such act is not performed within the time fixed, the Magistrate may cause it to be performed and may recover the costs of performing it by various modes provided in that sub-section The Executive Magistrate acquires jurisdiction to act under sec 141, Cr.P C. only if an order has been made absolute under Section 136 or Section 138, of the Code Section 135 of the Code provides that the person against whom such order is made shall perform, within the time and in the manner specified in the order, the act directed thereby; to appeal in accordance with such order and show cause against the same. Section 156 of the Code states that if such perform does not perform such act, or appear in accordance with the show cause, he shall be liable to penalty prescribed in that behalf in Section 188 of the Indian Penal Code and the order would be made absolute. In the present proceedings under Section 133, the petitioners had appeared and showed cause and, therefore, the order under Section 133, Cr. P.C, did not become absolute under Section 136. Another provision under which an order under Section 133 becomes absolute is contained in Section 138(2) of the Code. No such absolute order under Sections 136 or Section 138(2) was passed by the Addl. District Magistrate proceedings under Section 133, The Addl. Dist. Magistrate simply dropped the proceedings under sec 138 solely on account of the reason that the parties had filed a compromise and had prayed that the proceedings be dropped.
6. It is very clear that as in a proceeding under Section 133 of the Code, public rights are involved, the matter must be determined by legal evidence and could not be made a subject of compromise by the disputing parties. The law does not contemplate that the Magistrate should act as an arbitrator. Section 138 of the Code is imperative and mandatory. It was incumbent upon the Addl. District Magistrate to take evidence in the matter as in a summon case and thereafter he should have applied his mind whether he should pass an order absolute under Sub-section (2) of Section 138 of the Code or should drop the proceedings under Sub-section (3) of Section 138. The Addl. District Magistrate, Churu had no jurisdiction to drop the proceedings under Section 133, Cr.P.C. solely on account of the fact that the parties bad filed a compromise and, therefore, the respondent No. 2 did not want to proceed further with the proceedings. It is, in fact, not only the order of the Addl. District Magistrate dated April 26, 1989 and the order of the Sessions Judge, Churu dated August 14, 1989 affirming the said order of the Addl. District Magistrate that are wrong, but also the earlier order of the Addl. District Magistrate, Churu dated October 31, 1987 dropping the proceedings under Section 133, Cr. P.C.
7. In order to do justice to the parties, and to prevent the abuse of the process of the Churu, it is necessary not only to quash the orders challenged by the petitioners in this petition, but also to quash the order of the Addl. District Magistrate, Churu dated October 31, 1987, dropping the proceedings under Section 133, Cr. P.C. and to direct him to further proceed with the Case No. 5/1987 of his Court under sec 133, Cr. P.C. and to decide it in accordance with law and keeping in view the provisions contained in Section 138 of the Code of Criminal Procedure and other provisions relevant thereto.
8. I, therefore, allow this petition and set aside the order of the Sessions Judge, Churu dated August 14, 1989 affirming the order of the Addl. District Magistrate, Churu dated April 26, 1989. I further set aside the order passed by the Addl. District Magistrate on October 31, 1987 in case No. 5/1987 of his Court dropping the proceedings under Section 133, Cr. P.C. and direct him to proceed further with the said case No. 5 of 1987 under Section 133, Cr. P.C. in accordance with the provision contained in Sections 133 to 143 of the Code and more particularly Section 138. The parties are directed to present themselves before the Addl. District Magistrate on 11th December, 1989, Respondent No. 2 is here by directed to refund the amount of Rs. 3,000/- which had been recovered by him from the petitioners.