Lakshmi Narain, J.C.
1. On a petition filed by Jagindra Kishore against the Opposite Party Ardhendu Pat and Sudhendu Pal, that the latter were running their Rice and Atta Mill in a manner as to cause annoyance to him, Shri A, Bhattarcharjee, Magistrate, 1st class, Sadar registered it under Section 144, Cr. P. C., and issued warning notice to the opposite party asking them to show cause on or before 24-11-53. The opposite party submitted their statement, objecting to the above order. After hearing arguments on behalf of both parties Who were represented by their Counsel, the learned Magistrate rejected the petition; finding that it was not a proper case under Section 144, Cr. P. C., and holding that the second party is in possession of their Mill in running condition and there is no apprehension of breach of peace unless the first party goes to stop the Mill possessed by the second party.
2. On a motion filed by the petitioner the learned Sessions Judge has referred the case to this Court under Section 438, Cr. P. C., for setting aside the rejection order of the Magistrate with direction to hear the petition afresh, considering that the learned Magistrate only considered the petition from the standpoint of apprehension of peace and not for annoyance and danger to the health of the petitioner. The other ground of the petitioner that the Magistrate did not allow him to adduce evidence was ruled out by him.
3. The learned Counsel for the opposite party has informed this Court that the Rice and Atta Mill in question has been running for the last 4 years and nothing new has happened as to cause any annoyance to the petitioner in any way. The fact that the Mill has been running for the last 4 years is not denied by the learned Counsel for the petitioner, rather he has admitted that it has been so at least for the last 2 years or so. This fact alone goes to the very root of the case.
4. Orders under Section 144, Cr, P. C., are always passed as a temporary measure in urgent cases of nuisance or apprehended danger. The very fact that the Mill has been running for the last 4 years or so is sufficient to take away from the case its urgent character. The petitioner has been doing what he is legally entitled to do. The legal right of the petitioner ought not to have been restricted by such proceedings when there was no apprehension of breach of peace as found by the learned Magistrate and also no urgent case of nuisance was made out.
5. Section 144, Cr. P. C. is not meant for making use to curtail the rights of a citizen on a mere application that the petitioner apprehended danger of breach of peace or is annoyed or feeling some inconvenience or nuisance. Whether there is urgent necessity to meet the situation it, is for the Magistrate to see - who is the best Judge of emergency. I don't think that the learned Magistrate has exercised his discretion wrongly in the present case.
6. The learned Counsel for the petitioner has urged that the learned Magistrate has acted illegally in as much as he did not give opportunity to the petitioner for appearing and adducing evidence. He says that it is mandatory according to the provision of Sub-clause (5) of Section 144, Cr. P. C. His contention on the face of it appears to be wrong. Sub-section (5) does not lay down anything about adducing of evidence. The word applicant used in that Sub-section does not mean the petitioner as interpreted by his learned Counsel. It is the opposite party which is the aggrieved person and against whom the order was passed. Sub-section (5) is to be read in the context of Sub-section (4) which relates to the same matter and it becomes quite clear that the word applicant used in Sub-section (5) means the aggrieved party against whom the order has been passed and not the 1st party who moved in the matter. In the present case, therefore, it means the opposite party and not the petitioner.
7. As a result I don't see any ground for disturbing the order passed by the learned Magistrate. This reference is rejected.