CHANDMAL Vs. PRABHULAL

JUDGEMENT

(1.) THIS is an application in revision by Chandmal from the order of the Additional District Magistrate Kota dated 30th of April, 1962 remanding the case for further enquiry presumably under sec. 436 of the Criminal Procedure Code. Prabhulal son of Sewadas Bairagi of Rampura, District Kota lodged information in the court of Mr. Wadhwani Magistrate First Class, Kota on the 3rd of October, 1961 that the opposite party Chandmal son of Kishanlal of Ramganj Mandi Kota was the landlord of a shop which was occupied by the petitioner situated at Ramganj Bazar, Kota City of the boundaries mentioned in the petition and that Shri Chandmal had bored a few holes in one of the walls of the shop and that he had stored building material at the top of the shop rendering it in a dangerous condition for the occupants of the shop as well as for its neighbours and he prayed that action be taken against Chandmal for removing the building material from the roof of the shop and also for closing the holes that he had made in the wall of the shop. The petitioner did not appear in the witness-box himself and he produced Shrinivas in support of his complaint who stated that the shop or its roof were not in a dangerous condition, but at the same time he mentioned that as the opposite party had stored building material on the roof of the shop, it was likely to fall down unless the said material was removed. In cross-examination he admitted that he did not consider the condition of the shop to be dangerous and if he had thought so, he would certainly have made a report to the municipality about it. The petitioner did not produce any other evidence in support of this information. The Magistrate after considering the statement of Shrinivas and also after inspecting the site himself dismissed the petition and refused to make an order under section 133 of the Criminal Procedure Code for removal of the nuisance. The petitioner then went in revision to the court of the Additional District Magistrate, Kota, who on the 30th of April, 1962 remanded the case to the file of the Magistrate for further enquiry on the ground that the Magistrate had failed to record full evidence of the petitioner. The opposite party Chandmal has come to this Court in revision and Mr. R. S. Parihar on his behalf has urged that the order of the Additional District Magistrate for further enquiry is ultra vires for the reason that he had no jurisdiction to order further enquiry under section 436 or 437 of the Criminal Procedure Code as the information given by Prabhulal could not be considered to be a complaint in the meaning of section 4 (1) (h) of the Criminal Procedure Code and the information did not pertain to commission of an offence. He has referred to a decision of the Calcutta High Court in Shrinath Roy and others Vs. Ainaddi Halder (l ). The decision cited by the learned counsel is not applicable to this case, as it was given before the Criminal Procedure Code of 1898 came into force and it cannot render assistance in this case for that reason. The learned counsel has also urged that on the facts no case for an action under section 133 of the Criminal Procedure Code can be said to have been made out and the Magistrate recorded the evidence produced by Prabhulal and full (opportunity was afforded to him in that behalf.

(2.) THE first contention of the learned counsel is not without force. Section 436 of the Criminal Procedure Code empowers the High Court or the Sessions Judge to direct the District Magistrate to make further enquiry into any case of complaint which may have been dismissed under section 203 or sub-section (3) of section 204 or into the case of any person accused of an offence who may have been discharged. Sec. 437 relates to cases which, in the opinion of the Sessions Judge or the District Magistrate may have been improperly discharged of offences which are exclusively triable by a court of session. It is thus evident that neither sec 436 nor sec. 437 applies to a case falling under sec. 133 of the Criminal Procedure Code for the simple reason that the proceedings sec. 133 do not initiate on a complaint or do not contemplate commission of an offence by an accused person. THE Additional District Magistrate Kota thus had no authority under sec. 436 Cr. P. C. to order further enquiry in a case under sec. 133 of the Criminal Procedure Code. If on examining the record under sec. 435 of the Criminal Procedure Code, the learned Magistrate thought that the action taken by the Magistrate was irregular, illegal or improper, he might submit a report under sec. 438 to the High Court, but it was not open to him to take a decision himself and to direct further enquiry.