Report No. 41
10.1. Section 133.-
Under section 133, a District Magistrate, a Su.-divisional Magistrate or a Magistrate of the first class may take action for the removal of any such public nuisance as is described in the section on receiving a police report or other information and on taking such evidence (if any) as he thinks fit. In the earlier Report,1 the Commission considered that this function should be with the Executive Magistrates and further that it need not be confined to District Magistrates and Su.-divisional Magistrates.
We agree that Judicial Magistrates need not be brought in to adjudicate on these matters and to pass orders for the removal of nuisances and, accordingly, the reference to a "Magistrate of the first class" in su.-section (1) will have to be omitted. We, however, consider that instead of empowering any Executive Magistrate to take action under the section, the State Government should specially empower an Executive Magistrate if and when considered necessary.
In view of the definition2 we are proposing for the expression "police report" which will not be applicable in this context, it is better to refer to "the report of a police officer" instead of "a police report".
The first four lines of section 133(1) may accordingly be revised to read.-
"(1) When a District Magistrate or a Su.-divisional Magistrate or an Executive Magistrate specially empowered in this behalf by the State Government, on receiving the report of a police officer or other information and on taking such evidence (if any) as he thinks fit."
Consequentially, the last paragraph of section 133(1) may be amended to read.-
"to appear before himself or some other Executive Magistrate subordinate to him, at a time and place to be fixed by the order and show cause why the order should not be made absolute in the manner hereinafter provided."
1. 37th Report, para. 330(ii).
2. See para 1.27 above.
10.2. Sections 135 to 13.- Jury provisions unnecessary.-
Sections 135 to 139 contemplate the appointment of a jury consisting of not less than five members who will practically decide whether the conditional order made by the Magistrate under section 133 is reasonable and proper or whether it should be modified in any way or whether it should be made absolute. In the earlier Report1 the Commission did not agree with the concurrent suggestion of a State Government and of a High Court Judge that the provision for the appointment of a jury in these proceedings is not necessary.
The Commission expressed the view that the function of the jury is to decide whether the measures directed by the Magistrate are reasonable and proper and as the powers given to the Magistrate are of an exceptional nature, the jury provisions which are intended to operate as a check on the exercise of the summary and arbitrary dealing with the right of property may be retained.
On considering the matter further, we are unable to agree with this view. We notice that the Committee set up in Uttar Pradesh for investigating causes of corruption in subordinate courts stated that, "experience over the years had 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 case but was made mainly for the purpose of delaying the proceedings." Even in regard to sessions trials, we are proposing the abolition of the jury system since it has not worked satisfactorily in practice.
A jury of the type provided for in section 138 (the foreman and on.-half of the remaining members being nominated by the Magistrate and the other members by the person concerned) is, in our opinion, most unlikely to be helpful in reaching a proper decision. It will be difficult for the Magistrate to find person in the locality imbued with a strong civic sense, and capable of resisting extraneous pressure, to serve as jurors in such proceedings.
1. 37th Report, paras. 133, 141.
10.3. Revision of sections 135 and 136 and omission of sections 138 and 139.-
Sections 135 and 136 may accordingly be revised as follows.-
"135. Person to whom order is addressed to obey or show cause or claim jury.- The person against whom such order is made shal.-
(a) perform, within the time and in the manner specified in the order, the act directed thereby; or
(b) appear in accordance with such order and show cause against the same
"136. Consequence of his failing to do so.- If such person does not perform such act or appear and show cause., he shall be liable to the penalty prescribed in that'INhalf in section 188 of the Indian Penal Code, and the order shall be made absolute."
Sections 138 and 139 which provided for the appointment of jury and the further procedure may be omitted.
10.4. Section 139A should be placed before section 137.-
Section 139A lays down the procedure before the Magistrate when the person against whom a conditional order is made under section 133 denies in a relevant case the existence of a public right. No amendments of substance are required in this section, but it should obviously precede section 137 and not come after it. As section 138 is to be omitted, the following consequential amendments will be required in section 139A
(i) in su.-section (1), omit "or section 138";
(ii) in su.-section (2) omit "or section 138", as the case may require"; and
(iii) in su.-section (3), omit "nor shall any question in respect of the existence of any such public right be inquired into by any jury appointed under section 38."
10.5. Section 137 revised.-
As pointed out by the Commission in the earlier Report,1 it has to be made clear in section 137 that the Magistrate has the power to modify the conditional order on the basis of the inquiry made by him and then make it absolute. Section 137 may be revised as follows.-
"137. Procedure where he appears to show cause.- (1) If he appears and shows cause against the order the Magistrate shall take evidence in the matter as in a summons case.
(2) If the Magistrate is satisfied that the order, either as originally made or subject to such modification as he considers necessary, is reasonable and proper, the order shall be made absolute without modification or, as the case may be, with such modification.
(3) If the Magistrate is not so satisfied, no further proceedings shall be taken in the case."
1. 37th Report, para. 339(ii).
10.6. New section for local investigation and expert evidence.-
In the earlier Report1, the Commission has suggested an additional provision enabling the Magistrate to direct local investigation and the examination of experts. The provision which should be useful is as follows.-
"137A. Power of Magistrate to direct local investigation and examination of an expert.- (1) The Magistrate may, for the purpose of an inquiry under this Chapte.-
(a) direct a local investigation to be made by such person as he thinks fit; or
(b) summon and examine an expert.
(2) Where the Magistrate directs a local investigation by any person under su.-section (1), the Magistrate ma.-
(a) furnish such person with such written instructions as may seem necessary for his guidance; and
(b) declare by whom.the whole or any part of the necessary expenses of the local investigation shall be paid.
(3) The report of such person may be read as evidence in the case;
(4) Where the Magistrate summons and examines an expert under su.-section (1), the Magistrate may direct by whom the costs of such summoning and examination shall be paid."
1. 37th Report, para. 340.
10.7. Sections 140 to 143.-
The reference to section 139 in section 140(1) and the whole section 141 will have to be omitted. No amendment is required in section 142. In section 143, the reference to "any other Magistrate" may be changed to "any other Executive Magistrate".