Law: Criminal Procedure Code (V of 1898)

Section: 133,137

Criminal Procedure Code (V of 1898),   Ss. 133 & 137--Public nuisance-Order under S. 133-Magistrate not competent to drop proceedings on mere denial of allegations by opposite-party -Recording of evidence obligatory.   Subsection (1) of section 137 of the Criminal Procedure Code, 1898 makes it obligatory on the Magistrate to take evidence before taking action either under subsection (2) or sub section (3) of section 137 of the Code. When the opposite -party appears before him to show cause against the order made earlier under section 133 of the Code, it is mandatory on the Magistrate to record evidence. The Magistrate is not competent to drop the proceedings by merely referring to some papers on the file which had not been properly brought on the record as proved evidence. Failure of Magistrate to record evidence is a serious defect in the procedure which vitiates the order.   I L R 4 Pat. 783; Bazal Ahmed Sowdagar v. Nur Muhammad Sowdagar P L D 1963 Dacca 852; The State v. Muhammad Jamil and others P L D 1960 Kar. 555 and Govinda Goundan and others v. Aye Goundan and another A I R 1939 Mad. 465 ref.   ORDER   This is a Reference by Mr. F. A. Ahmed, Sessions Judge Jessore, recommending that the order made by the Sub-Divisional Magistrate, Jessore on 19-10-1963, should be set aside.   It is stated in the letter of Reference that petitioner Mr. Afzaluddin Biswas submitted an application under section 133 of the Code of Criminal Procedure stating that the opposite -party Dwijendra Nath Das obstructed a public pathway. The Magistrate directed the opposite-party to show cause on 19-10-1963. On that date the learned Magistrate made the impugned order which is in the following terms:   "Both the parties are present. 2nd-party denies the public right over the pathway which exclusively belongs to the local Baptist Mission. Seen papers. I am satisfied. The proceed ing is dropped." Mr. A. H. Muhammad Sharif ul Islam who appears in support of the reference submits that the learned Magistrate made the impugned order without recording any evidence on the denial of the allegation made against the opposite-party and as such it…