1. This is a reference by the learned Sessions Judge of Cawnpore recommending that a certain order of 6th September, 1924, passed by a Magistrate of the first class, making an; order, under Section 133 of the Criminal Procedure Code, absolute, may be set aside.
2. It appears that one Bachchu Lal complained that the opposite party, Jhau Lal, had constructed a platform on a public thoroughfare and had thereby obstructed it. The learned Magistrate issued a notice and on Jhau Lal appearing to show cause, took evidence and took into consideration the report made by a certain Deputy Magistrate and ordered that such portion of the platform as might be obstructing the highway should be removed. The learned Sessions Judge is of opinion that this order cannot stand, first because it is too vague and, secondly, because the learned Magistrate placed reliance mainly on the report of the Deputy Magistrate, Mr. Smart, who was not examined. I have heard the learned Counsel for the parties and have gone through the record. There can be no doubt that the order of the learned Magistrate was vague. He ought to have definitely pointed out and marked off how much of the platform should be removed. I note that the Magistrate did not proceed only on the report of Mr. Smart, but he had some evidence to guide him.
3. As it appeared to me that the complaint as to obstruction of a public thoroughfare was a matter that should be enquired into, I asked the learned Counsel for the opposite party, Jhau Lal, to state if he had any and what objection against the case being re-heard by a competent Magistrate other than the Magistrate who had made the rule absolute. The learned Counsel argued relying on the case of Rai Mohan v. Emperor (1916) 44 Cal. 61 and Kali Mohan Kali v. Nakari Chandra Das (1909) 11 C.L.J. 114, that the initial order was vague and that therefore there should be no further enquiry into the matter.
4. Those rulings, in my opinion, have no application. The initial order in this ease was perfectly good and called upon Jhau Lal to remove the entire platform. Section 133 of the Criminal Procedure Code does clearly contemplate that in suitable cases the order initially made may be modified and the modified order may be allowed to stand. In the circumstances it would not be desirable to set aside the order of the learned Magistrate without ordering a fresh enquiry.
5. I set aside the order of Mr. Browne dated the 6th of September 1924, and send back the case to the learned District Magistrate with direction that either he himself will take it up or transfer it to some Magistrate, other than Mr. Browne, competent to hear it. If Mr. Smart's report is to be taken into consideration, he should be examined as a witness. The parties should be allowed to adduce any further evidence that they may be advised.