Chapter X
Section 138 CrPC: Procedure where he appears to show cause
New Law Update (2024)
Section 157 BNSS
TRIAL COURT
Magistrate's Court
Punishment
Procedural – Warrant / Summons Process
Cognizable?
Bailable?
Compoundable?
Bare Act Text
(1) If the person against whom an order under section 133 is made 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(2) If the Magistrate is satisfied that the order, either as originally made or subject to such modification as he considers necessary, is reasonable and proper, the order shall be made absolute without modification or, as the case may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.
Important Sub-Sections Explained
Section 138(1)
This sub-section outlines the crucial procedural step where, if a person appears and challenges a nuisance order, the Magistrate must conduct an inquiry by taking evidence, similar to how evidence is recorded in a summons-case.
Section 138(2)
This part determines the outcome, stating that the Magistrate will confirm the original nuisance order or modify it if, after examining the evidence, they are convinced that the order is just and appropriate.
Landmark Judgements
Gopal Singh v. State of M.P., 1996 (1) MPLJ 744:
The Madhya Pradesh High Court held that the inquiry under Section 138 CrPC is quasi-judicial and the Magistrate must decide the dispute judiciously based on the evidence adduced by both parties. The section requires the Magistrate to be “satisfied” that the order is reasonable and proper, implying a detailed examination of facts.
Vasant Govindrao Deshpande v. The State of Maharashtra, 2018 SCC OnLine Bom 2603:
The Bombay High Court reiterated that the procedure laid down in Sections 133 to 138 of CrPC is exhaustive and must be strictly followed for dealing with public nuisances. Section 138 mandates an inquiry akin to a summons-case trial when cause is shown, emphasizing the evidentiary aspect before a conditional order can be made absolute.