Queen-Empress vs Khushali Ram and Others

John Edge, Kt., C.J.—A Magistrate, acting u/s 133 of Act No. X of 1882, made an order on Khushali Ram and others to remove an alleged unlawful obstruction or to appear at a time and place fixed by the order and move to have the order set aside or modified u/s 135. The persons against whom the order was made applied to the Magistrate to appoint a jury. The Magistrate proceeded in accordance with Section 138, and a jury was summoned. The jurors, five in number, appear to have gone to the locus in quo and then individually to have made up their minds without any discussion of the question. The two jurors and the foreman appointed by the Magistrate found that the order of the Magistrate to abate the nuisance was reasonable. The two nominated by Khushali and his companions found against the Magistrate''s order. The Magistrate thereupon, u/s 139, discharged the order, so far as I can see. He says that he kept the question open. But what he did appears in law to have been a discharging of the order. The majority of the jury having found that the order was a reasonable one, 1 fail to see how the Magistrate could discharge the order. The jury should have consulted together and not acted like partisans; and if they required evidence, evidence should have been produced before them. It was for the Magistrate to show by evidence that the obstruction referred to was an unlawful obstruction of a public way or in a public place. I set aside the proceedings subsequent to the application made u/s 135 of Act No. X of 1882, and direct the Magistrate of the district to cause a jury to be summoned in accordance with Section 138 and to cause the question involved to be tried.