NARHARIBHAI SUKHANAND DAVE Vs. CHATURBHAI DHARAMSINH

JUDGEMENT

(1.) This is a reference made by the learned Additional Sessions Judge Nadiad Mr. J. D. Desai under sec. 438 of the Criminal Procedure Code recommending to set aside the order passed by the learned Judicial Magistrate First Class Nadiad Mr. K. D. Shah in a Criminal Case No. 975 of 1965 directing the accused (landlord) to open the latrine and to allow the complainant (tenant) to use it within a period of one month from the date of the order i.e. 15th November 1965 and if he fails to do so he has to pay a fine of Rs. 0.25 np. for each day of the breach after the period of one month is over.

(2.) The facts leading rise to this reference are briefly stated as under :-

(3.) The learned Government Pleader Mr. Sompura appearing on behalf of the State and the learned advocate Mr. N. R. Israni (for Mr. N. H. Bhatt). appearing on behalf of the original accused contended that the impugned order could not be passed by the Judicial Magistrate in a criminal case like the instant case. Such an order could be passed in a Civil proceeding by the Civil Court if a proper application is made by a tenant as contemplated by sub-sec. (2) of sec. 24 of the Act after the Court makes an inquiry as contemplated by sub-sec. (3) of sec. 24 of the Act. The Court that could entertain and hear such an application would be the Court contemplated by sec. 28 of the Act. The learned Judicial Magistrate had no jurisdiction to pass the impugned order. Sub-sec. (1) of sec. 24 of the Act states:-