1. The learned Addl. Sessions Judge, Ahmednagar under Section 438 of the Criminal Procedure Code has recommended here that the order passed by the Magistrate be set aside and the case be remanded to him for recording the evidence as per Section 137(1) of the Code with a direction to decide the case according to law. The respondent is a bone factory at Burudgaon Road at Ahmednagar. In about 1969 a co-operative housing society came up there. The occupants of the houses of the society applied on 27-12-72 not only to the Police but also to the District Magistrate that the bone mill was causing nuisance to them on account of the foul smell emanating from the fresh bones. A proceeding under Section 137(2) of the Criminal Procedure Code was therefore initiated. A preliminary order under Section 133 was accordingly passed on 6-2-73 by the Special Executive Magistrate and served on the respondent-accused. He was asked to cease carrying on the trade of bone milling because it was injurious to public health. The respondent appeared before the Special Executive Magistrate on 17-2-73 to show cause. The learned Magistrate also visited the site and inspected the same. The matter was posted for hearing on 24-4-73 and as the advocate for the respondent-accused wanted an adjournment, it was adjourned to 4-5-73. There was again another application for adjournment on 4-5-73 but it was rejected and the learned Magistrate without recording any evidence made the preliminary order absolute. There was a revision preferred against this order to the learned Sessions Judge and the learned Judge after considering the provisions of Section 137, Cr. P, C. and the case law is of the view that it is imperative for the Court to record evidence in the matter under Section 137 and as the Magistrate has not recorded any evidence at all either on behalf of the original applicant or the respondent-accused, his order making the preliminary order absolute is bad in law.
2. It appears to me that the recommendation of the learned Sessions Judge is quite right. It is imperative under Section 137, Cr. P. C., for the Magistrate to take evidence in the matter and therefore he cannot just dispose of the matter without taking any evidence. His inspection of the site will not be of any use. This view is supported in Rameshwar Narayan Agarwal v. Emperor AIR 1939 Bom 92 : 40 Cri LJ 444.
3. I, therefore, accept the reference, set aside the order passed by the Magistrate and remand the record and proceedings back to the trial Court to dispose of the case according to law. Rule absolute.