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Velayudhan v. Kesavan Nair
Judicial Opinion Summary
Factual and Procedural Background
An order of reference was made by Mr. Justice Raghavan recounting that the Executive First Class Magistrate, Trivandrum, had initiated proceedings under Section 133 of the Code of Criminal Procedure. A preliminary (conditional) order was issued and notice given to the petitioners, who filed objections before the magistrate but did not produce evidence in support of those objections as required by Section 139A. The magistrate confirmed the preliminary order without taking evidence. That confirmation was challenged in revision. Because two earlier decisions of the Kerala High Court (Ambi v. State of Kerala, 1961 KLT 617 and Balan v. State of Kerala, 1966 KLT 1100) appeared to conflict on whether the party at whose instance a conditional order was passed must be called to give evidence before making the order absolute, the matter was placed before a Division Bench for authoritative determination.
Legal Issues Presented
- Whether, under the scheme of Sections 133 and 137 read with Section 139A of the Code of Criminal Procedure, a magistrate who makes a conditional order absolute under Section 137(3) can do so without first calling on and taking the evidence of the party at whose instance the conditional order was passed to substantiate his allegations.
Arguments of the Parties
Petitioners' Arguments
- Petitioners' counsel relied on Ambi v. State of Kerala (1961 KLT 617) (as cited) which was stated to hold that "under s.137 the conditional order cannot be made absolute without the party (complainant) being called upon to substantiate the allegation, which necessitated the passing of the conditional order by producing legal evidence." The petitioners' position, as presented, supports the need to summon and take evidence from the party who obtained the conditional order before it can be made final.
First Respondent's Arguments
- Counsel for the first respondent relied on Balan v. State of Kerala (1966 KLT 1100) (as cited), the head-note of which was quoted: that Section 137 "contemplates proof not of reasonableness and propriety of the conditional order passed but of its unreasonableness and impropriety" and that if evidence is not forthcoming from the person against whom the conditional order was directed, the magistrate is required to make the conditional order absolute. In short, the argument based on that decision placed the burden on the person objecting to the conditional order to adduce evidence, and if he fails, the order should be made absolute without the magistrate calling the party who obtained the conditional order to give evidence.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Ambi v. State of Kerala, 1961 KLT 617 (Anna Chandy J.) | That under s.137 a conditional order cannot be made absolute without the party (complainant) being called upon to substantiate the allegation by producing legal evidence. | The court expressly agreed with this statement of the law and relied on it to conclude that a magistrate must take the evidence of the party at whose instance the conditional order was passed before making it absolute. |
| Balan v. State of Kerala, 1966 KLT 1100 (Madhavan Nair J.) | That s.137 contemplates proof of the unreasonableness and impropriety of the conditional order and that if evidence is not forthcoming from the person against whom the order was made the magistrate should make the conditional order absolute. | The court reviewed and disagreed with this view, concluding that Balan was not correct in holding that a magistrate could make the conditional order absolute without taking evidence of the party at whose instance the order was passed. |
| Sankaran v. Kunjukrishnan, 1968 KLT 859 | Cited as a decision supporting the view aligned with Ambi (i.e., that the complainant must adduce evidence). | Included among cases said to support Ambi; relied upon generally as part of the line of authority favoring the requirement to call the complainant to give evidence before making an order absolute. |
| Thomas Varkey v. Idiculla John, ILR 1951 TC 123 | Cited as supportive of the position taken in Ambi. | Referenced as part of the body of decisions backing Ambi's principle; treated as corroborative authority in the court's survey of precedent. |
| In re Ramsing, 1900 II Bombay Law Reporter 818 | Cited as supportive of the Ambi view. | Referenced as part of the supporting authorities relied on for the proposition that complainant's evidence is necessary before making conditional order absolute. |
| Lal Behari v. Jatindra Chandra, AIR 1949 Cal. 37 | Cited as supportive of the Ambi view. | Used in the chain of authorities the court identified as consistent with the requirement of taking complainant's evidence. |
| Rameswar v. Emperor, AIR 1939 Bom. 92 | Cited as supportive of the Ambi view. | Included among the precedents noted to bolster the view that a party at whose instance a conditional order is made must be called to give legal evidence before the order is made final. |
| Attar Singh v. Hari Singh, 28-1927 Criminal Law Journal 60 | Cited as supportive of the Ambi view. | Listed among decisions the court regarded as lending support to the proposition in Ambi. |
| Jagan Nath Prasad v. Emperor, 28-1927 Criminal Law Journal 510 | Cited as supportive of the Ambi view. | Referenced as an authority consistent with the requirement to call the complainant for evidence before making the conditional order absolute. |
| Akhoy Sardar v. Lalchand Sarkar, 28-1927 Criminal Law Journal 859 | Cited as supportive of the Ambi view. | Included in the list of authorities the court cited as backing Ambi's approach. |
| Srinath Roy v. Anudai Halder, ILR 24 Cal. 395 | Cited as supportive of the Ambi view. | Noted among earlier decisions that the court considered consonant with the view that the complainant must produce legal evidence before a conditional order is made absolute. |
Court's Reasoning and Analysis
The court undertook a textual and contextual analysis of the statutory provisions in Chapter X of the Criminal Procedure Code (Sections 133–143), focusing particularly on Sections 133, 137 and 139A. The analysis proceeded in the following steps, based exclusively on the statements in the opinion:
- Identification of the statutory scheme: Sections 133 to 143 concern public nuisances. Section 133 allows a magistrate to pass conditional orders on receiving information and after taking such evidence, if any, as he thinks fit. Sections 134–139A specify the steps after a conditional order, including service of the order, the right to appear and show cause, the appointment of a jury, and penalties for non-compliance.
- Clarification of the separate stages of inquiry: The court held that a combined reading of Sections 137 and 139A reveals two distinct stages—first the inquiry under Section 139A(1)–(2) (where the magistrate must question the person against whom the conditional order was passed and determine whether there is reliable evidence supporting any denial of a public right, and, if so, stay proceedings for a civil decision), and only thereafter the stage under Section 137 (which requires taking evidence "as in a summons case" if the person appears and shows cause).
- Statutory interpretation of Section 137(1): Section 137(1) requires the magistrate, when the person appears and shows cause, to "take evidence in the matter as in a summons case." The court read this together with Section 244 (which governs trial of summons cases) and concluded that this phrase contemplates taking the complainant's evidence first and then the evidence of the accused; therefore "evidence in the matter" means the evidence of the complainant (i.e., the party at whose instance the conditional order was passed).
- Consideration of the evidentiary posture at the inception of the Section 137 inquiry: The court observed that at the beginning of the Section 137 stage, the only material supporting the conditional order is the information or ex parte statements received under Section 133(1), which are not legal evidence adequate for passing a final order.
- On the character of making a conditional order absolute without calling the complainant: The court reasoned that making a conditional order absolute solely because the objecting party defaults to adduce evidence would amount to a penalty on that default. Such a penalty is not provided for by Section 139A(3), which sets out the specific consequences for failure to deny the public right or to adduce reliable evidence; thus the statutory scheme does not authorize making the conditional order absolute in that manner.
- Conclusion from the combined reading: For these reasons (the textual reading of Sections 137 and 139A, the requirement of "evidence in the matter" as complainant's evidence, the insufficiency of ex parte information, and the absence of a statutory penalty authorizing making the order absolute on the opposite party's default), the court concluded that a magistrate cannot properly make a conditional order absolute under Section 137(3) without first taking the evidence of the party at whose instance the conditional order was passed.
- Resolution of precedent conflict: The court expressly agreed with the position taken in Ambi and disagreed with the contrary holding in Balan, explaining that Balan's reliance on Sections 137(2) and (3) alone was insufficient because those provisions must be read in conjunction with the rest of the section and with Section 139A.
Holding and Implications
Holding: Revision allowed; the final order of the Executive First Class Magistrate, Trivandrum (which had been confirmed in revision by the Sessions Judge, Trivandrum) is set aside and the matter is remitted to the Executive First Class Magistrate for proceeding afresh in the light of the observations made.
Implications:
- Direct effect on the parties: The magistrate's final order (confirmed by the sessions judge) has been annulled and the matter sent back for a fresh inquiry consistent with the court's interpretation—specifically, the magistrate must take the evidence of the party at whose instance the conditional order was passed before deciding whether to make the conditional order absolute.
- Resolution of conflicting authorities: The court resolved the apparent conflict between Ambi v. State of Kerala (1961 KLT 617) and Balan v. State of Kerala (1966 KLT 1100) by agreeing with Ambi and disagreeing with Balan. The opinion explains the statutory basis for preferring Ambi's position.
- No extension beyond the text: The opinion confines its conclusion to the statutory interpretation and the controversy between the cited authorities; it directs the lower magistrate to proceed afresh in conformity with the reasoning set out in the judgment.
1. This matter has come up before us with an order of reference passed by our learned brother mr. Justice raghavan. That order reads as follows:
"the executive first class magistrate, Trivandrum started proceedings under s. 133 of the code of criminal procedure. Notice of the preliminary order was given to the petitioners; and they filed their objections before the magistrate. However, They did not produce evidence in support of their objections, Which they were bound to do under s. 139a of the code. Then, The magistrate confirmed the preliminary order without taking evidence. In revision the said order is being challenged.
the counsel of the petitioners draws my attention to the decision of this court in ambi v. State of kerala (1961 klt. 617) by anna chandy j. Laying down that under s. 137'the conditional order cannot be made absolute without the party (complainant), Being called upon to substantiate the allegation, Which necessitated the passing of the conditional order by producing legal evidence'. I am inclined to agree with this. The counsel of the first respondent, The petitioner before the executive first class magistrate, Draws my attention to another decision of this court by madhavan nair j. In balan v. State of kerala (1966 klt. 1100). The head - note of the case reads:
's. 137 contemplates proof not of reasonableness and propriety of the conditional order passed but of its unreasonableness and impropriety. If evidence therefore is not forthcoming the section requires the magistrate to make the conditional order absolute. In other words it is for the person against whom a conditional order has been made to convince the magistrate, That the conditional order was not reasonable or proper in the facts and circumstances of the case and not for the other party to lead evidence to satisfy the magistrate that his conditional order was reasonable and proper. '
these two decisions by two learned judges of this court appear to conflict, One taking the view that in any enquiry under s. 137, The complainant must adduce evidence and the other taking the view that in such a proceeding, The respondent should produce evidence against the preliminary order and the complainant need produce evidence only to rebut.
because of this conflict, I place this case before a division bench for an authoritative decision dissolving the tie.
2. This revision raises the question whether even without calling on the party at whose instance a conditional order was passed under s. 133 of the criminal procedure code to let in evidence to substantiate his allegations that order can be made absolute as soon as the person against whom the order was passed defaults to let in evidence to substantiate his objections. Our learned brother mr. Justice madhavan nair in balan v. State of kerala 1966 klt. 1100, Held that it could be done. In ambi v. State of kerala 1961 klt 617, Anna chandy j. Took the opposite view and that gains support from the decisions in sankaran v. Kunjukrishnan, 1968 klt. 859, Thomas varkey v. Idiculla john ilr. 1951 tc 123, In re ramsing 1900 - ii - bombay law reporter 818, Lal behari v. Jatindra chandra air. 1949 cal. 37, Rameswar v. Emperor air. 1939 bom - 92, Attar singh v. Hari singh 28 - 1927 criminal law journal 60, Jagan nath prasad v. Emperor 28 - 1927 criminal law journal 510, Akhoy sardar v. Lalchand sarkar 28 - 1927 criminal law journal 859 and srinath roy v. Anudai halder ilr. 24 cal. 395.
3. Madhavan nair j. Relied upon the language of s. 137 (2) and (3) to reach his conclusion. Those clauses in s. 137 speak of the magistrate's obligation to stop all further proceedings if he is satisfied that the conditional order is not reasonable and proper and to make that order absolute if he is not so satisfied. Prima facie it would appear from it that once the conditional order is passed the burden is on the person against whom that order was directed to show that it was not reasonable and proper and that if he does not adduce evidence to substantiate it that order has to be made absolute. In that view the observation in balan v. State of kerala 1966 klt. 1100 that after the conditional order was passed the satisfaction required on the part of the magistrate was of the unreasonableness and impropriety of the order and the conclusion that in the absence of evidence on the side of the party against whom the order was passed the order could be made absolute without taking the evidence of the party at whose instance that order was passed, If we may respectfully say so, May be quite justified. But those provisions in s. 137 do not stand isolated. They have to be read along with the remaining provisions in the same section and the provisions in the remaining sections which deal with public nuisances and if so read it is clear that even after the party against whom the conditional order was passed defaulted to let in evidence to substantiate his objections that order could not be made absolute without taking the evidence of the other party at whose instance the proceedings were started.
4. Let us now examine the relevant provisions in the criminal procedure code. It is chapter x containing s. 133 to 143 that deals with public nuisances. S. 140 to 143 are not relevant for the present purpose because they deal with the execution of the final order, Issue of injunction pending inquiry and similar matters. S. 133 provides for magistrates passing conditional orders on receiving a police report or other information and on taking such evidence, If any, They think fit. That section also provides that in the conditional order the magistrate shall require the person causing the nuisance to appear before him or some other competent magistrate to move to have the conditional order vacated or modified in one or the other of the modes provided for in the succeeding sections. S. 134 to 139a deal with the steps to be taken after the stage of the passing of the conditional order. At the conclusion of the inquiry 3 alternatives are given to the magistrate. He can either stay the proceedings under s. 139 a (2) until the matter has been decided by a competent civil court or drop all further proceedings under s. 137 (2) or make the conditional order absolute under s. 137 (3) s. 134 says how service is to be made of the conditional order on the person against whom it was passed. After the order is served on the person against whom it was passed he can, If he has no objections to the order, Comply with it. If he has objections he has either to appear before the magistrate and show cause against the order or apply to him to appoint a jury to try whether the passing of the order was reasonable and proper. S. 138 and 139 deal with the procedure - relating to the appointment and verdict of the jury. If the person against whom the conditional order was passed neither complies with the order nor appears and shows cause nor applies for appointment of jury penalty is provided for in s. 136. If he appears before the magistrate it is obligatory on the part of the magistrate under s. 139a (1) to question him to ascertain whether he denies the existence of a public right in the way, River, Channel or place for which the conditional order was passed. If he denies the existence of any such right, The magistrate has to inquire into the matter under s. 139a (1). The first thing that he has to do in that inquiry is to find out whether there is reliable evidence in support of the denial of the public right. If there is such evidence he should under s. 139a (2) await the decision of a competent civil court and stay all further proceedings. If the person against whom the conditional order was passed, On being questioned by the magistrate fails to deny the existence of the public right or after making such denial fails to adduce reliable evidence in support of such denial he would not in the subsequent proceedings be permitted to make denial of any such public right. The existence of such public right would not in that case be allowed to be inquired into by the jury also appointed on his application. They are the only penalties provided for in s. 139a (3) for failure to deny the existence of a public right after appearance before the magistrate or having made such denial to adduce reliable evidence in support thereof those provisions do not authorise the magistrate to make the conditional order absolute if the person against whom that order was passed fails to substantiate his denial of the public right. It is after the inquiry contemplated by s. 139a (1) and (2) about the substantiation of the denial of the public right by the person against whom the conditional order was made that the stage of inquiry contemplated by s. 137 starts. That is clear from the words "the magistrate shall, Before proceeding under s. 137 or 138, Inquire into the matter" appearing in s. 139a (1). This is how s. 137 and 139a read:
"137. (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 is not reasonable and proper, No further proceedings shall be taken in the case.
(3) if the magistrate is not so satisfied, The order shall be made absolute.
"139a. (1) where an order is made under s. 133 for the purpose of preventing obstruction, Nuisance or danger to the public in the use of any way, River, Channel or place, The magistrative 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 s. 137 or s. 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 civil court; and, If he finds that there is no such evidence, He shall proceed as laid down in s. 137 or s. 138, As the case may require
(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, Nor shall any question in respect of the existence of any such public right be inquired into by any jury appointed under s. 138. "
under s. 137 (1) if the person against whom the conditional order was passed appears and shows cause against the order the magistrate has to take evidence as in a summons case. Sub - sections (2) and (3) of s. 137 authorise the magistrate either to drop all further proceedings in the inquiry or make the conditional order absolute. They also give directions as to when the magistrate can do so. He can drop all further proceedings if he is satisfied that the conditional order is not reasonable or proper. In other cases he can make the order absolute.
5. A combined reading of s. 137 and 139a shows that there are 2 distinct stages in the inquiry contemplated by those sections, The first being that under s. 139a (2) and the 2nd that under s. 137. Entering on the 2nd stage arises only if the party against whom the conditional order was passed defaults to adduce reliable evidence in support of his denial of the existence of a public right. In the scheme of the inquiry the proper place for the provisions in s. 137 is after s. 139a. Its present place above s. 139a has been partly responsible for the confusion it has created.
6. Now we go straight to the question whether a magistrate who makes a conditional order absolute under s. 137 (3) can do so without taking the evidence of the party at whose instance he passed the conditional order. We are of the opinion that it cannot be done. That is firstly because there is scope for the application of s. 137 (2) and (3) only after the conclusion of the inquiry contemplated by s. 137 (1) and the provision in s. 137 (1) that in an inquiry under it evidence should be taken as in a summons case indicates that the magistrate has to take the evidence of the party at whose instance the conditional order was passed before the disposal of the case. S. 244 which comes in chapter xx dealing with the trial of summons cases says that the magistrate should hear the complainant, If any, And take all such evidence as may be produced in support of the prosecution and thereafter take the evidence adduced by the accused. The words "evidence in the matter" employed in s. 137 (1) mean evidence of the complainant. Secondly, At the beginning of the stage of the inquiry under s. 137 (1) the only material before the magistrate in support of the conditional order he passed is the information or exparte statements he received under s. 133 (1) and they cannot take the place of legal evidence for passing a final order. And thirdly, If even without taking the evidence of the party at whose instance the conditional order was passed that order is to be made absolute on the default to let in evidence of the party against whom it was passed it works out as a penalty for his default and such a penalty is not provided for in s. 139a (3) which deals with penalties for defaults in such cases. We therefore, Respectfully agree with the statement of the law on the subject in ambi v. State of kerala 1961 klt. 617 and disagree with that in balan v. State of kerala 1966 klt. 1100.
7. In the result, We allow this revision petition and set aside the final order of the executive first class magistrate, Trivandrum which was confirmed in revision by the sessions judge, Trivandrum. The matter is remitted to the executive first class magistrate for proceeding afresh in the light of the observations made above.
allowed.
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