Sahabat Ali Mridha and Others vs The Emperor

Jack, J.—This Rule has been issued upon the District Magistrate of Rajshahi to show cause why the conviction of and the sentence passed on the Petitioners should not be set aside on grounds Nos. 3 to 6 and 11 of the petition. The facts are that an order was passed on the Petitioners purporting to be one under sec. 143 of the Code of Criminal Procedure. The order is as follows:

Seen report of the C. O. Godagari. The Bund is apparently a public nuisance in that it obstructs the free passage of Boats on a public river. Issue injunction on opposite party under sec. 143, Cr. P. C., not to continue or repeat the construction of the Bund.

It appears that previous to this order there was no preliminary proceeding under sec. 133, calling upon the Petitioners to remove the obstacle or, if they objected to do so. to appear and have the order set aside. Sec. 143 is obviously only applicable where there has been a preliminary consideration under sec. 133 and the Magistrate has passed an order under sec. 133 prohibiting public nuisance. Then if there is any danger of the nuisance being repeated, an order under sec. 143 can be passed. The terms of sec. 143 show that this is what is meant. It follows immediately after the proceedings have been taken in connection with the previous order of prohibition of nuisance, referred to in sec. 133 and subsequent sections. If any authority is required it is to be found in the case of Jagadish Narain v. Dameshdhari Prasad 15 P. L. T. 253 (1934) where it was laid down that the object of sec. 143 is to prevent repetition of a nuisance and it is not for original use, and that a summary order without giving the parties an opportunity of being heard is not proper. This followed an older case Queen-Empress v. Jokhu I. L. R. 8 All. 99 (1886). In this case the order under sec. 143 was passed ex parte. The order under sec. 143 having been an illegal order and there having been no opportunity for the Petitioners to show cause against it, the order convicting them for the breach of that order cannot be maintained.

The Rule is accordingly made absolute. The conviction and sentence are therefore set aside. The fines if paid must be refunded.