VELUCHAMY Vs. S ALAGAPPAN

JUDGEMENT

(1.) The counter petitioners before the Executive Sub Divisional Magistrate and Asstt. Collector, Paramakudi, in R.O.C. A2/12121/ 94 have filed this revision petition.

(2.) The Executive Sub Divisional Magistrate, Paramakudi, on the petition filed by the revision petitioners, has passed an order under Section 133 Code of Criminal Procedure on 3-10-1994. The revision petitioners herein, who were counter petitioners appeared before the Executive Sub Divisional Magistrate, had filed their objections on 19-10-1994. The Executive Sub Divisional Magistrate and Asstt. Collector got the report of the Tahsildar, Paramakudi and thereafter without making any enquiry into the matter passed the final order under Sections 138 and 141 Cr. P.C. on 15-11-1994. Against the said order the revision petitioners have preferred this revision. Section 133 Cr. P.C. empowers the Executive Sub Divisional Magistrate to pass a conditional order for removal of nuisance. Accordingly, the Executive Sub Divisional Magistrate passed the order under Section 133 Cr. P.C. on 310-1994. On the service of the summons the counter petitioners the revision petitioners herein, appeared before the Sub Divisional Magistrate, Paramakudi and filed their objections. Thereafter the learned Magistrate shall take evidence in the matter as in a summons case. as per Section 138 Cr. P.C. However, the learned Magistrate has not taken any evidence either of the petitioners or of the counter petitioners as contemplated under Section 138 Cr. P.C. The learned Magistrate has called for the report of the Tahsildar, Paramakudi, and the said Tahsildar has filed his report, which forms part of the record. Learned Magistrate is empowered to direct the taar investigation as contemplated under Section 139 Cr. P.C. However as per Section 140 Cr. P.C. the Magistrate may furnish such person with such written instructions, as may seem necessary for his guidance. There is nothing on record to show that the learned Magistrate has given any such written instructions to the Tahsildar. Paramakudi, to submit as report. As per Section 140(2) Cr. P.C. the report of such person may be read as evidence in the case. However, there is nothing on record to show either the learned Magistrate has shown the report of the Tahsildar to the counter petitioners who are the revision petitioners herein, or that their attention was drawn to that effect. Therefore, it is a clear case wherein the learned Magistrate has not followed the relevant provisions of Code of Criminal Procedure before passing the final order under Section 141 Cr. P.C.

(3.) Learned counsel appearing for the revision petitioners has drawn my attention to two of the rulings of our High Court and one ruling of the Kerala High Court. In The Executive Officer, Sri Rajagopalaswami Temple, Pudupalayam, Cuddalorev. A. Satchidanandam at page 18 this court has held that it is necessary for the Magistrate to record evidence as contemplated under Section 133 Cr. P.C. and the learned Magistrate making an inspection of the property without giving notice to the parties and without preparing the notes of inspection held to be an irregularity.