1. It appears that the Magistrate received a petition on the 16th September 1885, complaining of a nuisance caused by cultivators of fields in the petitioners' neighbourhood spreading nightsoil as manure on their fields. No one was named in this petition; and upon it the Magistrate issued a proclamation forbidding, in general terms, any person spreading nightsoil on his fields so as to cause disease or annoyance.
2. The proclamation was issued on the 19th September. On the 10th October, one Ali Jan charged Jokhu, the petitioner, and another person who is not before this Court, with offences under Sections 278, 290 and 291, with reference to spreading nightsoil on their fields.
3. The Police were directed to send up the accused. They sent up Jokhu and Cheti, the petitioners now before this Court (the latter not being one of those whom Ali Jan had charged); and the Magistrate instituted a prosecution against them under Section 291, and convicted them of an offence under that section, and sentenced them to a fine of Rs. 25 each, or simple imprisonment for one month. A petition has been presented for revision, on the ground that no offence under Section 291 has been committed; and in my opinion this is the case. Section 291 is as follows: 'Whoever repeats or continues a public nuisance, having been enjoined by any public servant who has lawful authority to issue such injunction not to repeat or continue such nuisance, shall be punished with simple imprisonment for a term which may extend to one month, or with fine, or with both.'
4. To support a conviction, there must be proof of an injunction to the petitioners individually against repeating or continuing the same particular public nuisance. It must be shown that the person convicted had on some previous occasion committed the particular nuisance, had been enjoined not to repeat or continue it, and had repeated or continued it.
5. The authority under which a Magistrate can order or enjoin a person against repeating or continuing a public nuisance is Section 143 of the Criminal Procedure Code; and it is the infringement of this order or injunction that is punishable under Section 291 of the Indian Penal Code; and it is clear that what is contemplated is an order addressed to a particular person (see Schedule V, Form 20).
6. In the case before me, these requirements have not been fulfilled. The only order of the Magistrate is contained in the proclamation addressed generally to the public at large. It sets out that some persons not named, have committed a nuisance by spreading nightsoil on their fields; and all cultivators are ordered to refrain from spreading nightsoil so as to cause disease or annoyance. It is difficult to see how any cultivator could take tins order as necessarily applicable to himself. The act of using nightsoil as manure is not in itself a public nuisance; and each cultivator might suppose in his individual case that the nightsoil he used would not cause disease or annoyance so as to been infringement of the order. Section 291 contemplates a wilful breach of an order against repeating or continuing a public nuisance; and the order must be brought home to the individual charged before he can be convicted under that section.
7. I may add that the Magistrate had no authority for the procedure he adopted in issuing the proclamation. His powers to deal with public nuisances tare contained in Chapters X and XI of the Criminal Procedure Code.
8. The provisions of Chapter X contemplate orders to be directed to, and served on persons individually, and that opportunity shall be given to show Wise against the order; and service of the order is to be made on the person canst whom the order is made, if practicable, in the manner provided for service of summons; and it is only if such order cannot be so served, that it be notified by proclamation published in such manner as the Local Government may by rule direct (Section 134).
9. It is only in emergent cases, to which Chapter XI applies, that an order may be made ex parte, and any exception is allowed to the general rule that it shall be directed to a particular individual.
10. In such emergent cases the order, which is to be served in the manner provided by Section 134, may be directed to 'the public generally when frequenting or visiting a particular place' (Section 144). That is to say, an order may, under Section 144, be directed to the public generally, when frequenting or visiting a particular place, to abstain from a certain act; but this provision has no applicability to an order of the nature contained in the Magistrate's proclamation, which was directed to a portion of the community, and had no concern with the public generally, frequenting or visiting a particular place.
11. I notice this point as the Public Prosecutor referred to Chapter XI, and particularly this part of Section 144, to support the action of the Magistrate in Issuing the proclamation. I may add that Chapter XI is only properly applicable to temporary orders in urgent cases; and the order here was not of a temporary character; nor is there anything to show that the Magistrate considered immediate action necessary under this Chapter.
12. I have been asked by the Public Prosecutor to alter the conviction to one of an offence under Section 290,--committing a public nuisance--or other which the evidence may prove to have been committed. But this is not a case in which such action on the part of a Court of Revision is desirable, assuming it to have the power. The petitioners were only put on their defence in respect of the charge under Section 291, and the case was tried summarily; and there is no evidence on the record to which this Court can refer, so as to say that any offence has been committed; and it is, moreover, undesirable to take up now a charge in respect of a public nuisance, which, if it was committed, is a thing of the past.
13. The convictions and sentences are set aside, and the fines will be refunded.