KISHORI LAL PANURI Vs. EMPEROR

JUDGEMENT

(1.) In this case a conditional order has been passed against the petitioners under Section 133, Cr. P.C., to remove an obstruction from the Grand Trunk Road. This order was passed on the 16 May, 1908, and the petitioners were ordered to remove the obstruction or to show cause on the 26 May, 1908. On the 26 May, 1908, they appeared and put in a petition in which, we are told, they both showed cause against the order and also applied to the Magistrate for the appointment of a jury.

(2.) In our opinion, an application for both these reliefs cannot be made under Section 135, Cr. P.C. That section gives the person, against whom the order is passed, the right to adopt either of these alternatives, either to show cause or else to apply for a jury. If the person proceeded against fails to do either, the consequences prescribed by Section 136 follow. If he adopts the former alternative, the Magistrate is bound to take action under Section 137; and if he adopts the second alternative, then the Magistrate is bound to take action under Section 138. Both Secs.137 and 138 are imperative in their terms. The Magistrate has no discretion in the matter; he is bound to take the action which those sections lay down. If, therefore, the petitioners can both show cause and apply for a jury, it follows that the Magistrate would be bound both to take evidence and deal with the matter under Section 137 and also to appoint a jury under Section 138. This appears to us to be a reductio ad absurdum and the conclusion, we draw, is that a person may adopt either alternative he pleases, but is not entitled to apply for both the reliefs specified in Section 135, Cr. P.C.

(3.) It appears that although the petitioners applied for both these reliefs, yet in the end they elected to proceed with the application for the appointment of a jury. That application was granted: the action required by Section 138 was taken, and the jury were appointed and directed to return their verdict within three weeks. This period was afterwards extended; but the jury seemed to have been extremely dilatory: and after the Magistrate had given them the ample time of two months, they still failed to submit their report. Therefore, the Magistrate proceeded under Section 141 to make the order absolute.