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1943 Supreme(Mad) 20
IN THE HIGH COURT OF MADRAS
Byers, J.
Juje DSilva
Versus
Kashmir DSilva
Decided On : 15.01.1943
Important Points
Subject
Criminal Law - Procedural Law
Headnote
Section 133 - Code of Criminal Procedure - The court discussed the power of the Magistrate to modify a provisional order issued under Section 133 of the Code of Criminal Procedure, emphasizing that the Magistrate sitting alone has no jurisdiction to modify the original order, and it is only when sitting with a jury that he has the power to modify the order before making it absolute.
Fact of the Case:
The owner of two trees was called upon to show cause under Section 133 of the Code of Criminal Procedure for not taking steps to prevent them from damaging a nearby house. The Stationary Sub-Magistrate ordered the respondent to cut a cocoanut tree without the option to secure it with wires.
Finding of the Court:
The court accepted the reference and directed that the final order should include the alternative provision of securing the tree with a wire as contemplated by the original order issued under Section 133 of the Code.
Issues: The issue was whether the Magistrate had the power to modify the provisional order issued under Section 133 of the Code of Criminal Procedure.
Ratio Decidendi: The court emphasized that when the Magistrate sits alone to dispose of the matter under Section 137, he has no jurisdiction to modify the original order. The power to modify the order before making it absolute lies with the Magistrate when sitting with a jury.
Final Decision: The reference was accepted, and the final order included the alternative provision of securing the tree with a wire as contemplated by the original order issued under Section 133 of the Code.
Byers, J.
1. The case which has given rise to this reference arose under Section 133 of the Code of Criminal Procedure. By a preliminary order issued under that section the owner of two trees was called upon to show cause why he should not be directed to take certain steps to prevent them from damaging a house close by. One of the trees is a cocoanut tree and the notice issued under Section 133 of the Code contemplated either cutting it or securing it with a wire. Eventually, the Stationary Sub-Magistrate ordered the respondent in the proceedings to cut the tree, giving him no option to secure it with wires as he found that this remedy would not serve the purpose on account of the heavy winds prevailing at certain times of the year. The reference has. arisen on the contention that it was beyond the power of the learned Magistrate to modify the provisional order.
2. The order has been made absolute under Section 137 (3) of the Code, which directs that if the Magistrate is not satisfied that the order is not reasonable and proper, " the order shall be made absolute." Under Section 135 of the Code the respondent in the proceedings may apply for a jury to try the issue whether the order is reasonable and proper. In such a case the final order is passed under Section 139 of the Code, which confers jurisdiction upon the Magistrate to make the order absolute subject to any modification found necessary. Thus it will be seen that when the Magistrate sitting alone disposes of the matter under Section 137, he has no jurisdiction to modify the original order. It is only when silting with a jury that he has power to modify the order before making it absolute.
3. In the result, the reference is accepted and the final order will include the alternative provision of securing the tree with a wire as contemplated by the order first issued under Section 133 of the Code.
