In Re: Aluvala Guruviah

Miller, J.—Dr. Swaminadhan raises two questions on behalf of the petitioner: (1) Whether the conditional order u/s 133 Criminal Procedure

Code is illegal and (2) whether in the absence of the notice required by Section 140 the conviction can be sustained. The petitioner did not come

forward to object to the order under, Section 133 which directed him to protect his well ""according to the instructions of the Local Fund

Overseer."" Assuming that the order is not such as is contemplated by Section 133, I do not in these circumstances think it necessary to interfere

with the conviction in revision. The question whether the notice prescribed by Section 140 must be given before any punishment can be inflicted for

disobedience of the order passed u/s 133 is not free from difficulty.

If the order is made absolute u/s 137 or Section 139 then clearly no punishment can follow unless the procedure laid down in Section 140 is

adopted, but neither Section 137 nor Section 139 declares as Section 136 does, the liability to punishment.

The Public Prosecutor with the support of Queen Empress v. Bhishambar Lal Cr. Rev. Pet. No. 382 of 1907 contends that whenever the time

fixed in the order u/s 133 has been, allowed by the person against whom that order is made to pass without compliance with the order or protest

against it, the liability to punishment attaches at once to that person and may be enforced irrespective of Section 140.

Both Sections 136 and 140 impose a duty on the Magistrate; he ""shall"" make the order absolute and he ""shall"" thereupon give time for

compliance with it and point out the penalty attached to disobedience. Must he then, if he enforces the penalty u/s 136, at the same time give

further time for compliance with the order and threaten a further penalty for disobedience? Again if, it is necessary to give warning of the penalty

when a notice is issued u/s 140, should it not be equally necessary to give the same warning before enforcing a penalty for disobedience to the

order u/s 133?

I have found some difficulty in finding an answer to these questions which shall be quite satisfactory, and at the hearing I was disposed to take

the view presented by Dr. Swaminadhan on behalf of the petitioner, but, on consideration, I think that view does not give effect to the declaration

of the liability enacted in Section 136, or to the difference between that section and Sections 137 and 139. The view taken by the Allahabad High

Court does give full effect to Section 136 and is on that account the better interpretation, and I adopt that view and dismiss the petition.

I do not know if the Magistrate contemplates further proceedings, but I think it desirable to point out that the petitioner is only bound to provide

for the safety of the public so far as it is threatened by the existence of the road, and it will be the duty of the Magistrate to see if further

proceedings are taken that he is not required to do more than the law requires him to do.