BANTA SINGH Vs. SOHAWA SINGH

JUDGEMENT

(1.) DISTRICT Magistrate, Faridkot, vide reference order dated February 21, 1973, recommended for setting aside the order dated August 9, 1972, passed by the Sub-Divisional Magistrate, Muktsar, in proceedings initiated under Section 133 of the Code of Criminal Procedure, 1898 (hereinafter referred to as the Code ). The sole ground on which the recommendation was made by the learned District Magistrate, Faridkot, was that the Sub-Divisional Magistrate, Muktsar, did not comply with the provisions of Section 137 of the Code inasmuch as no evidence was recorded and the case was decided on the affidavits filed by the parties. This reference was refused by me on September 13, 1974. I held that the parties having been given an opportunity to produce evidence and they having felt contented by filing the affidavits of the witnesses on whom they relied, the reference was not well founded. On a petition having been filed on behalf of the party in whose favour the District Magistrate Faridkot had made the recommendation, I recalled my order dated September 13, 1974. This was done as it was brought to my notice that in Gian Chand v. Khushi Ram 1974 Chand LR (Cri) 462, a learned Single Judge of this Court had taken a view that evidence by way of affidavits in proceedings under Section 133 of the Code, does not satisfy the provisions of Section 137 of the Code, and, therefore, the evidence in such a case has to be recorded as is recorded in a summons case. Keeping in view the importance of the question of law involved in the case, I referred the following question of law to a larger Bench:

(2.) SECTION 133 of the Code vests jurisdiction in a District Magistrate or a Sub-Divisional Magistrate or an Executive Magistrate of the first class to pass a conditional order for the removal of nuisance. After preliminary order is passed under this section and when a person against whom the said order has been passed, appears before the Magistrate to show cause against the order, the procedure to be followed by the Magistrate is prescribed under Section 137 of the Code. The provisions of Section 137 of the Code are as follows;-

(3.) CHAPTER XX of the Code contains the provisions regarding the trial of summons-cases by a Magistrate. Section 244 (1) of the Code provides that if the Magistrate does not convict the accused under Section 243 of the Code, the Magistrate shall proceed to hear the complainant (if any) and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produces in his defence, provided that the Magistrate shall not be bound to hear any person as complainant in any case in which the complaint has been made by a Court. Sub-section (2) of this section provides that the Magistrate may, if he thinks fit, on the application of the complainant or accused, issue summons to any witness directing him to attend or to produce any document or other thing.