Kalyan Mul Mathur vs Emperor

Varma, J.—This is an application against an order passed by the Subdivisional Officer of Bettiah u/s 137(3), Criminal P.C. As this matter is to a very great extent connected with the subject matter of Cri. Rev. No. 369 of 1936, it is necessary to mention a few facts. Cri. Rev. No. 370 arises out of Misc. Case No. 14 of 1936 and Cri. Rev. No. 369 arises out of Misc. Case No. 16 of 1936.

It appears that the Subdivisional Officer of Bettiah on a report received on 27th March 1936 from the Sub-Inspector of Police issued notice u/s 133, Criminal P.C., to the petitioner to abate the nuisance caused by his depositing waste water near the Majhaulia police station. As it appears from the notice itself it was with regard to some bad water in a ditch within the compound of a mill. Cause was shown on 8th April 1936 and on that date the learned Magistrate expressed an opinion that evidence should be gone into and called upon both the parties (the Sub-Inspector on the one hand and the present petitioner on the other) to produce witnesses on the next date. On 9th April 1936 four witnesses were examined on behalf of the first party and two witnesses were examined on behalf of the second party. A petition was filed by the second party for time to produce further witnesses. The learned Magistrate ordered then to file a list that very day and he adjourned the case for argument and evidence, if any, to 21st April 1936. It appears that on 21st April 1936 a list of four witnesses who were present in Court was filed on behalf of the second party but, without examining them, on hearing from the second party through a petition of the foul water in the ditch having disappeared, the learned Magistrate asked for a report from the Sub-Inspector of Police who supported the allegation of the second party. After this the learned Magistrate goes on to add:

In that case there is no object in prolonging these Section 133, Criminal P.C., proceedings as the nuisance in respect of which they were started has apparently been caused to cease. Since I have not been satisfied that the original order was not reasonable and proper it is hereby made absolute u/s 137(3). Since the nuisance is admitted to have been abated there is no object in proceeding further u/s 149, Criminal P.C. The second party are discharged from their P.R. and the case disposed of.

The petitioners went to the learned Sessions Judge of Muzaffarpur who, although he was of opinion that the learned Subdivisional Officer was not justified in making the rule absolute, did not think it necessary to refer the matter to this Court as no further proceeding u/s 140 was contemplated. Therefore, no question of prejudice arose to the petitioner. I agree with the first part of the observation made by the learned Sessions Judge but not with the second because an order u/s 137(3) is not like an order u/s 144 which spends itself in 60 days; and if the order u/s 137(3) was not good and is allowed to remain in force then in case of future proceedings it is apt to be used against the petitioner, because the learned Magistrate has made his preliminary order absolute. There are other grounds upon which this order has been attacked by the learned Advocate appearing on behalf of the petitioner and they are that when the Magistrate decided to go into evidence and fixed the 21st of April for argument and evidence, if any, and when the petitioner had four other witnesses ready, he was not justified in making the order absolute without examining those witnesses. This contention, I think, must prevail. Section 137(1) says that the evidence shall be taken as in summons cases. Under these circumstances I think this rule should be made absolute and the order of the learned Magistrate, dated 21st April 1936, is set aside.

Criminal Revision No. 369 of 1936. We now come to the revision which arises out of Misc. Case No. 16 of 1936. Now, before the previous case just now disposed of was finished, a report was submitted by the health officer of Champaran District Board, on receipt of which on 14th April 1936 with regard to the same nuisance which was ultimately dealt with by his order dated 21st April 1936, the learned Subdivisional Officer ordered in the following terms:

Issue notice to Manager Majhaulia Mill u/s 183, Criminal P.C., to filter and chlorinate his waste water. Cause if any to be shown on 21/5.

But from the evidence it is clear that all the time they were pointing to the same tank which was the subject matter of a proceeding in Misc. Case No. 14 of 1936. The learned Magistrate made his order absolute on 4th July 1936. We know from the records of Misc. Case No. 14 of 1936 that there was no water in the tank and therefore the learned Magistrate had dropped the proceedings, although he made the rule absolute. Still he continued with this proceeding for a time. Throughout the period after 21st April 1936 there was no water to be filtered or to chlorinate on the evidence in Misc. Case No. 14. Then the result of the present order is not with regard to any existing nuisance but of a nuisance which is likely to come into existence during the season. The section applies to existing nuisance and not to nuisance that is likely to arise in future. If any authority is wanted I may refer to the cases in Shri Ram v. Emperor 1985 All 926 and Gokal Chand v. Emperor 1920 Lah 258. The learned Sessions Judge was of opinion that this order too should not have been made absolute, but he refrained from referring the case to this Court. In view of the authorities that I have cited, if the nuisance does not exist now I do not think the order should have been made absolute. It is doubtful if a Magistrate can continue with two proceedings u/s 133, Criminal P.C. side by side with regard to practically the same subject matter, because the danger is that by this procedure a Magistrate may get a chance of reviewing an order which he had already passed. This is a procedure which is not contemplated by the Criminal Procedure Code. I would therefore set aside this order as well and make the rule absolute.