1. This is a reference by the learned Sessions Judge of Jhansi in a case under Ch. 10, Criminal P.C. One Phul Chand made a complaint under Section 133, Criminal P.C., alleging that certain 'sandas' and cesspool, belonging to the opposite-party, Kajju Lal, amounted to public nuisance and should be ordered to be removed. The Magistrate made a conditional order requiring Rajju Lal to remove the nuisance or to appear and move the Magistrate to have the order set aside. Rajju did not remove the nuisance but appeared and moved the Court to set a side the order. He filed a written statement showing cause why the order served upon him should not be made absolute. He did not ask for a jury to be appointed under Section 135. The Magistrate passed no orders as regards the 'sandas' which had been constructed without the permission of the Municipal Board, and left the matter to be dealt with by the Board. As regards the cesspool, he found that it was a public nuisance and should be removed. In arriving at that conclusion he relied exclusively on what he himself observed on inspecting the locality.
2. Rajju Lal applied to the learned Sessions Judge for revision of the order of the Magistrate. The learned Judge has expressed the opinion that it was the duty of the Magistrate to have recorded evidence in proof of the alleged fact that the existence of the cesspool in question was a public nuisance, and that it was not open to him to have made his order absolute, in view of the failure of the person proceeded against to adduce evidence justifying his action. The learned Judge has referred to a number of decided cases in support of his view that the Magistrate was not justified in making his provisional order absolute only because the person proceeded against showed no sufficient cause and that he should have recorded evidence of the facts alleged against him, on which alone his conclusion could be based.
3. I do not think the correctness of this view can be doubted. I may however point out that, in a case like the one before me, the question whether the cesspool is a public nuisance depends generally speaking upon the circumstances which can best be ascertained by an inspection of the locality. The situation of the cesspool and the extent to which it is a public nuisance to the passers by are matters which can be proved by a witness who has been to the locality, and where the Magistrate has taken the trouble to inspect the locality for himself, the necessity of witnesses being examined is greatly obviated. At the same time, inspection by a magistrate must be conducted and used in the manner laid down by Section 539-B of the Criminal Procedure Code under which the Magistrate must record a memorandum of relevant facts observed at the inspection. Such memorandum is to be used for the purposes of 'properly appreciating the evidence given at the enquiry or trial.' It seems to me that the Court is not expected to base its judgment on its own inspection note which may however necessitate no more then technical compliance with law that there should be substantive evidence apart from the inspection note which is merely to aid it in appreciating the evidence before the Court. This being so, the magistrate should have examined, at least, the complainant. He should also have placed on the record a memorandum of what he observed at his inspection, a formality which does not appear to have been observed in the present case. In these circumstances, the order of the Magistrate directing Rajju Lal to remove the cesspool by a certain date was not in accordance with law and cannot stand. Accordingly I set aside the order of the Magistrate and direct him to proceed according to law.