STATE Vs. MAHADEVAPPA GOUNDAPPA GODI AND

JUDGEMENT

(1.) This is a reference under Section 438 Cr. P. C, made by the learned First Additional District and Sessions Judge, Dharwar, recommending that this Court may be pleased to quash the order made by the learned Sub Divisional Magistrate, Gadag Division, Gadag, in Mis. Case No. 8 of 1958 on his file as the said order contravenes the provisions of Section 137 Cr. P. C.

(2.) Misc. Case No. 8/58 is a proceeding under Section 133 of the Criminal Procedure Code. The preliminary order passed in that case reads thus:

(3.) Under Section 133(1) Cr. P. C. "whenever a District Magistrate, a Sub Divisional Magistrate or a Magistrate of the first class considers, on receiving a police report or other, information and on taking such evidence (if any) as he thinks fit, that any unlawful obstruction or nuisance should be removed from any way, river or channel which is or may be lawfully used by public or from any public place ...... such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance ...... within a time to be fixed in the order." Section 134 provides for the Service of the notice referred to in Section 133. Section 135 says: