Shyam Sundar Sinha and Others vs Emperor through Ram Narain Sinha

Bucknill, J.—This is a reference by the learned Sessions Judge of Ghazipur under the following circumstances. A notice was issued to the applicants u/s 133 of the Cr.P.C. for the removal of a privy which was alleged to constitute a nuisance as it had been constructed on a, public path and only a few paces from a; shivalah. They appeared and asked for the appointment of a Jury and a Jury was duly constituted. The Jury, however, failed to return a verdict as required by Section 139. The learned Sessions Judge has taken the view that the parties were thereby relegated to the same position as when the notice u/s 133 was originally issued. This, however, is not what the Code lays down. Section 141 provides that if the Jury fails to return, a verdict within the time allowed in accordance with law the Magistrate may pass such, order as he thinks fit, and the order shall; be executed in the same manner as, a final; order u/s 140. What the Magistrate, did in this case was to inspect the spot and to call for a report from the Police. The, result of both proceedings was to satisfy him of the correctness of the original, order. He found from his inspection that the construction was new, that it did encroach on the, road, and that it was so near to the shivalah as to constitute a public nuisance. Under these circumstances the order passed by the Magistrate was not, in my opinion, an, illegal order.

Let the record be returned.