Full Judgment
Miller, J.
1. Dr. Swaminadhan raises two questions on behalf of the petitioner: (1) Whether the conditional order under Section 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 under Section 133 is not free from difficulty.
2. If the order is made absolute under Section 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.
3. 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 under Section 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.
4. 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 under Section 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 under Section 140, should it not be equally necessary to give the same warning before enforcing a penalty for disobedience to the order under Section 133?
5. 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.
6. 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.