October 2024

Power of Magistrate to furnish written instructions, etc (1) Where the Magistrate directs a local investigation by any person under section 139, the Magistrate may— (a)   furnish such person with such written instructions as may seem necessary for his guidance; (b)   declare by whom the whole or any part of the necessary expenses of the local investigation shall be paid. (2) The report of such person may be read as evidence in the case. (3) Where the Magistrate summons and examines an expert under section 139, the Magistrate may direct by whom the costs of such summoning and examination shall be paid.

Power of Magistrate to direct local investigation and examination of an expert The Magistrate may, for the purposes of an inquiry under section 137 or section 138— (a)   direct a local investigation to be made by such person as he thinks fit; or (b)   summon and examine an expert.

Procedure where he appears to show cause (1) If the person against whom an order under section 133 is made appears and show 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 (2) If the Magistrate is satisfied that the order, either as originally made or subject to such modification as he considers necessary, is reasonable and proper, the order shall be made absolute without modification or, as the case may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.

Procedure where existence of public right is denied 1) Where an order is made under section 133 for the purpose of preventing obstruction, nuisance or danger to the public in the use of any way, river, channel or place, the Magistrate shall, on the appearance before him of the person against whom the order was made, question him as to whether he denies the existence of any public right in respect of the way, river, channel or place, and if he does so, the Magistrate shall, before proceeding under section 138, inquire into the matter. (2) If in such inquiry the Magistrate finds that there is any reliable evidence in support of such denial, he shall stay the proceedings until the matter of the existence of such right has been decided by a competent Court; and, if he finds that there is no such evidence, he shall proceed as laid down in section 138. (3) A person who has, on being questioned by the Magistrate under sub-section (1), failed to deny the existence of a public right of the nature therein referred to, or who, having made such denial, has failed to adduce reliable evidence in support thereof, shall not in the subsequent proceedings be permitted to make any such denial.

Consequences 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 behalf in section 188 of the Indian Penal Code (45 of 1860), and the order shall be made absolute.

Person to whom order is addressed to obey or show cause The person against whom such order is made shall— (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. COMMENTS LAW COMMISSION REPORTS Abolition of jury – This section corresponds to section 135 of the old Code minus the provision relating to appointment of jury. In recommending the deletion of provision for jury, the Law Commission observed: “Sections 135 to 139 (old Code) contemplate the appointment of 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…….We notice……….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’……….A jury of the type provided for………is, in our opinion, most unlikely to be helpful in reaching a proper decision. It will be difficult to find a person in the locality imbued with a strong civic sense, and capable of resisting extraneous pressure, to serve as jurors in such proceedings.”

Service or notification of order (1) The order shall, if practicable, be served on the person against whom it is made, in the manner herein provided for service of a summons. (2) If such order cannot be so served, it shall be notified by proclamation, published in such manner as the State Government may, by rule, direct, and a copy thereof shall be stuck up at such place or places as may be fittest for conveying the information to such person.

Conditional order for removal of nuisance (1) Whenever a District Magistrate or a Sub-Divisional Magistrate or any other 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, considers— (a)   that any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel which is or may be lawfully used by the public; or (b)   that the conduct of any trade or occupation, or the keeping of any goods or merchandise, is injurious to the health or physical comfort of the community, and that in consequence such trade or occupation should be prohibited or regulated or such goods or merchandise should be removed or the keeping thereof regulated; or (c)   that the construction of any building, or, the disposal of any substance, as is likely to occasion conflagration or explosion, should be prevented or stopped; or (d)   that any building, tent or structure, or any tree is in such a condition that it is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by, and that in consequence the removal, repair or support of such building, tent or structure, or the removal or support of such tree, is necessary; or (e)   that any tank, well or excavation adjacent to any such way or public place should be fenced in such manner as to prevent danger arising to the public; or (f)   that any dangerous animal should be destroyed, confined or otherwise disposed of, such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation, or keeping any such goods or merchandise, or owning, possessing or controlling such building, tent, structure, substance, tank, well or excavation, or owning or possessing such animal or tree, within a time to be fixed in the order— (i)   to remove such obstruction or nuisance; or (ii)   to desist from carrying on, or to remove or regulate in such manner as may be directed, such trade or occupation, or to remove such goods or merchandise, or to regulate the keeping thereof in such manner as may be directed; or (iii)   to prevent or stop the construction of such building, or to alter the disposal of such substance; or (iv)   to remove, repair or support such building, tent or structure, or to remove or support such trees; or (v)   to fence such tank, well or excavation; or (vi)   to destroy, confine or dispose of such dangerous animal in the manner provided in the said order; or, if he objects so to do, 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, in the manner hereinafter provided, why the order should not be made absolute. (2) No order duly made by a Magistrate under this section shall be called in question in any Civil Court. Explanation : A “public place” includes also property belonging to the State, camping grounds and grounds left unoccupied for sanitary or recreative purposes.

Protection against prosecution for acts done under preceding sections (1) No prosecution against any person for any act purporting to be done under section 129, section 130 or section 131 shall be instituted in any Criminal Court except— (a)   with the sanction of the Central Government where such person is an officer or member of the armed forces; (b)   with the sanction of the State Government in any other case. (2) (a)   No Executive Magistrate or police officer acting under any of the said sections in good faith; (b)   no person doing any act in good faith in compliance with a requisition under section 129 or section 130; (c)   no officer of the armed forces acting under section 131 in good faith; (d)   no member of the armed forces doing any act in obedience to any order which he was bound to obey, shall be deemed to have thereby committed an offence. (3) In this section and in the preceding sections of this Chapter,— (a)   the expression “armed forces” means the military, naval and air forces, operating as land forces and includes any other armed forces of the Union so operating; (b)   “officer”, in relation to the armed forces, means a person commissioned, gazetted or in pay as an officer of the armed forces and includes a junior commissioned officer, a warrant officer, a petty officer, a non-commissioned officer and a non-gazetted officer; (c)   “member”, in relation to the armed forces, means a person in the armed forces other than an officer. COMMENTS Sanction granted under section 132 is not a substitute for sanction under section 197 – There are six significant points of difference between sections 132 and 197, these are: (1) The two sanctions are addressed to altogether different persons. While sanction under section 132 is addressed to the intending complainant, sanction under section 197 is addressed to the Magistrate presiding over a Court. (2) The two sanctions serve two altogether different purposes. While the sanction under section 132 clothes the intending complainant with authority to institute a complaint and set the machinery of the criminal Court in motion, the sanction under section 197 clothes the Court with the jurisdiction to take cognizance of the offence. Without the former, the intending complainant cannot trigger the proceedings, without the latter the Magistrate cannot have seisin over the matter or act in the matter. (3) the absence of sanction in each case visits different persons with different consequences. Absence of the former disables the intending complainant whereas absence of the latter disables the Court. (4) The disability operates in two different spheres. Want of sanction under section132 renders the complaint invalid. Want of sanction under section 197 vitiates all the proceedings in the Court. For want of the former, the complainant cannot complain, for want of the latter the Court cannot try the case. (5) The sanctioning authority has to address itself to different questions. In regard to a sanction under section 132, Cr. P.C. the question to be answered is whether the intending complainant is a suitable person to be authorized for prosecuting the matter in good faith. In regard to the sanction under section 197 the question to be answered is which particular Court should be empowered to try the case. So also in granting sanction under section 197 the sanctioning authority has to consider whether or not to exercise the powers under section 197(4) to specify “the person by whom, the manner in which, and the offence or offences for which” the concerned public servant should be tried and “the Court before which the trial is to be held”. The authority seized of the matter in the context of sanction under section 132 does not have to address itself to these questions and in fact has no competence in this behalf. (6) One is an authority to an individual to ‘prosecute’ the alleged offender, the other is an authority to ‘try’ the alleged offender. Therefore, a sanction under section 132 is no substitute for a sanction under section 197—Ram Kumar v. State of Haryana AIR 1987 SC 735.