1. In this case a conditional order has been passed against the petitioners under Section 133, Cr. P.C., to remove an obstruction from the Grand Trunk Road. This order was passed on the 16th May, 1908, and the petitioners were ordered to remove the obstruction or to show cause on the 26th May, 1908. On the 26th May, 1908, they appeared and put in a petition in which, we are told, they both showed cause against the order and also applied to the Magistrate for the appointment of a jury.
2. In our opinion, an application for both these reliefs cannot be made under Section 135, Cr. P.C. That section gives the person, against whom the order is passed, the right to adopt either of these alternatives, either to show cause or else to apply for a jury. If the person proceeded against fails to do either, the consequences prescribed by Section 136 follow. If he adopts the former alternative, the Magistrate is bound to take action under Section 137; and if he adopts the second alternative, then the Magistrate is bound to take action under Section 138. Both Sections 137 and 138 are imperative in their terms. The Magistrate has no discretion in the matter; he is bound to take the action which those sections lay down. If, therefore, the petitioners can both show cause and apply for a jury, it follows that the Magistrate would be bound both to take evidence and deal with the matter under Section 137 and also to appoint a jury under Section 138. This appears to us to be a reductio ad absurdum and the conclusion, we draw, is that a person may adopt either alternative he pleases, but is not entitled to apply for both the reliefs specified in Section 135, Cr. P.C.
3. It appears that although the petitioners applied for both these reliefs, yet in the end they elected to proceed with the application for the appointment of a jury. That application was granted: the action required by Section 138 was taken, and the jury were appointed and directed to return their verdict within three weeks. This period was afterwards extended; but the jury seemed to have been extremely dilatory: and after the Magistrate had given them the ample time of two months, they still failed to submit their report. Therefore, the Magistrate proceeded under Section 141 to make the order absolute.
4. The petitioners have now come to this Court and obtained a rule on the Deputy Commissioner of Manbhoom to show cause why the order should not be set aside on the ground that the Magistrate should have taken evidence in the matter as prescribed in Section 137, Cr. P.C.
5. It may be the case that after a jury has failed to perform their duty, through no fault of the person against whom the conditional order has been passed, that person may perhaps be allowed to revert to the other alternative given him by Section 135. In that case the Court may take evidence under Section 137 and dispose of the matter under that section read with Section 141. It is not necessary for us to decide in this case whether such a course would be legal or not because in this case it is perfectly clear that the petitioner never asked the Magistrate to do anything of the kind. He put in no application to have his witnesses examined; he put in no application for adjournment; he did not ask for any assistance from the Court at all; nor did he ask the Court to refrain from, or delay in passing orders under Section 141. This is clear from the record of the case itself, nor is it stated in the application of the petitioner to this Court that he took any action of the nature indicated above.
6. In these circumstances, if the petitioners did not ask the Magistrate to take any further action or to examine further witnesses, we do not see what else could have been done but to dispose of the matter at once. This is what has been done and we do not see how the Magistrate has acted in any way wrongly.
7. The rule is accordingly discharged.