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Report No. 37

341. Sections 138 and 139, and suggestion of a High Court Judge.-

The following suggestion1 has been made by a High Court Judge:-

"The procedure regarding appointment of a jury in public nuisance cases is cumbrous. The matter should be left for determination by the Magistrate. An appeal may be provided."

We would, however, emphasise, that the function of the jury is to decide whether the measures directed by the Magistrate are reasonable and proper.2 As the powers given are of an exceptional nature,3-4 we think that the jury may be retained. These provisions are intended to operate as a check on the exercise of the "summary and arbitrary dealing with right of property.5-6

1. F. 3(2)/55-L.C., Pt. III, S. No. 49(a).

2. See section 139(1).

3. Gokal Chand v. Crown, (1919) ILR 1 Lah 163 (168).

4. Basanti Devi v. Laxmi Chand, AIR 1949 All 650 (651).

5. Reg..v. Dajsukh Ram, (1864-68) 2 BHCR Cr 384 (386, 407, 412) (Sausse C.J.).

6. See also para. 333, supra.

342. Sections 138-139 and U.P. Committee's suggestion.-

The following suggestion has been made by the U.P. Committee1 for the Investigation of causes of Corruption-

The reasons given by the U.P. Committee are as follows:-

"The provision relating to the appointment of a jury appears to be unnecessary. Experience over years has shown that very rarely did a party ask for the appointment of a jury; further, whenever a party did ask for the appointment of a jury the request was not made in order to have a proper decision of the cause but was made mainly for the purpose of delaying the proceedings.

"Trial by juries having been abolished in the State, it appears that the retention of a jury under this Chapter was not justified. The Committee, therefore, recommends the deletion of that provision which entitled a party to ask for the appointment of a jury.

"Sections 138 and 139 of the Code may be deleted."

We are unable to accept the suggestion, as we think that the system of jury ought to be retained for these proceedings.2

1. F. 3(2)/55-L.C., Pt. VII, S. No. 440, Suggestion of the U.P. Committee for Investigation of Causes of Corruption in Subordinate Courts in U.P. (1963), Report, pp. 43-44, (Draft at pp. 227 to 230).

2. See para. 333, supra.

343. Section 139A.-

With reference to section 139A, difficulty is caused because the language of section 135(b) is not clear enough to indicate that the provisions of section 139A are saved. It is, therefore, desirable to amend section 135(b), so as to make it clear,1 that the provisions of section 139A are not affected by section 135(b).

1. To be carried out under section 135(b).

344. Section 139A and Uttar Pradesh Committee's suggestion.-

With reference to section 139A, the U.P. Committee1 has suggested that a new section containing the same provision as is contained in section 139A should be added as section 136A, and the existing section 139A should be deleted.

The reason given is that section 139A is not at its appropriate place, and should come after section 136.

The changes which we are recommending2 will remove the misunderstanding caused at present.

1. F. 3(2)/55-L.C., Pt. VII, S. No. 449, Suggestion of the U.P. Committee for Investigation of Causes Of Corruption in Subordinate Courts in U.P. (1963), Report, pp. 43-44 (Draft at pp. 227-230).

2. See para. 343, supra.

345. Sections 140 to 142.-

No changes are needed in sections 140 to 142.

The question was raised in the course of discussion before us whether, the jurisdiction of Civil courts to set aside the order under section 133 et seq. was ousted by reason of the provisions of section 133(2) and section 140(3), and (if so), whether the position was satisfactory. It appears, that such jurisdiction is not taken away, at least so far as the final order is concerned.1

As has been observed, the procedure of the Magistrate is more or less summary, and "his decision goes so far as to fix upon the party who must go to the civil court to get a civil dispute decided".2

Nor does claim for the appointment of a jury estop a person from asserting his rights.3 No change is necessary on this point. What section 140 means is, that if a Magistrate causes the act ordered to be performed, that order cannot be questioned in the Civil court, and no suit can be maintained to prevent the Magistrate from carrying it into effect.4

1. Secretary of State v. Jethabhai, 1892 ILR 17 Bom 293 (299), agreeing with Chuni Lal, ILR 15 Cal 460 (467, 470) (FB).

2. Dulichand v. Emp., ILR 51 All 1025: AIR 1929 All 833 (Dalal J.).

3. Mutty Rain v. Mohi Lal, 1880 ILR 6 Cal 291 (301) (Field J.).

4. Cf. Ram Narain, AIR 1940 Oudh 75 (76).

346. Section 143.-

In section 143, the following points require to be noted:-

(i) Presidency Magistrates especially empowered should be added in section 143. Cf the Bombay Amendment. (There is also a suggestion of a State Government to that effect).1

(ii) Before "other Magistrate", the word "Executive" be added. CI the Bombay Amendment.

1. F. No. 3(2)/55-L.C., Pt. I, S. No. 18.

347. Section 143 and need for previous adjudication.-

With reference to section 143, it is the suggestion of a High Court Judge1 to clarify that an order under section 143 may be passed only in respect of a public nuisance held to be so by a competent court. That is the legal position under the case-law, as the order under section 143 can be passed only if the matter has been adjudicated by a competent court.2-4 But, in our opinion, it is unnecessary to codify that proposition.

1. F. 3(2)/55-L.C., Pt. II, S. No. 33(a).

2. Jogendra Lal v. Sheikh, AIR 1935 Cal 108(2).

3. Ram Sahai v. Littama Debi, AIR 1935 All 79 (80).

4. Jagdish v. Dhanushdhari, AIR 1940 Pat 305.

348. Section 143 and penalty and procedure.-

It has been suggested1 that a penalty should be prescribed for disobedience of an order under section 143.

We think that the provisions of section 291, Indian Penal Code are enough.2

It is also stated in the same suggestion, that in section 143 there should be a provision similar to that contained in section 140(2)(3). The object of the suggested change is, perhaps, to empower Magistrate to deal speedily with repetition of the nuisance, that is to say i.e., without undergoing the formalities of section 133. We would not, however, like to go that length.

1. F. 3(2)/55-L.C., Pt. II, S. No. 33(a).

2. As to section 291, see Q.E. v. Jokhu, ILR 8 All 99.

349. Section 144-validity of .-

The question of the validity of section 144 generally, was considered by us with reference to the discussion in the Allahabad case of Raj Narain1 and the Supreme Court's judgment in Babulal.2 The view taken by us was, that the section as a whole is valid. In any case, it is not possible to split up the section without creating confusion.3

1. Raj Narain v. District Magistrate, AIR 1956 All 481.

2. Babulal Parate v. State, AIR 1961 SC 884.

3. As to section 144(6), see para. 355, supra.

350, Section 144 and Members of Parliament.-

A suggestion1 not to prosecute a Member of Parliament etc. for offences under section 188, Indian Penal Code for the violation of an order under section 144 of the Code of Criminal Procedure has been considered by us. But we are not inclined to recommend a general exception by statute, on this point.

1. F. 3(2)/55-L.C., S. No. 15.

Code of Criminal Procedure, 1898 (Sections 1-176) Back

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