1. Ram Narain Singh filed an application on 6th March 1925, under Section 133 of the Code of Criminal Procedure against the defendants.. His case was that there is a public path running east-west. To the south of the path, is a chabutra of Shivaji and a pacca well. There was a house of defendants to the north of the path. Defendants have pulled down that house and are building a new one. Defendants' privy formerly was in the northern portion of the house. This time defendants have made a latrine which opens on the road. This latrine will cause much nuisance to the worshippers of Shivaji and to those persons who use the water of the well, as the latrine is very near the chabutra of Sivaji and the well.
2. The Court, after taking the statement of the applicant, asked the police to submit a report after local inspection and also to submit a map of the place.
3. The police reported that this latrine seems to be new. Its situation is a source of nuisance as it will be cleaned from outside This latrine is only 12 paces off from the well and the chabutra of Shivaji and is also close to the path. It will give trouble to the worshippers of the Shivaji and to the persons who use the water of the well.
4. On this, notice was issued to defendants. Defendants appeared and filed an objection and said that a jury be appointed, and nominated two persons as jurors on their side. The Court accordingly appointed a jury of five parsons. The Qanungo was appointed by the Court as umpire, and two parsons as jurors were nominated by the Court.
5. It appears from the order on the order-sheet dated 15th May 1925, that all the jurors did not inspect the place together. Four inspected the place at one time and they differed. The fifth juror without seeing the place sent a third report. The Court said that this procedure was illegal and so discharged the jury. Then the Deputy Magistrate said that he will inspect the place himself, and then parties may produce any evidence they like on 18th May, 1925. The Court inspected the place on 17th May, 1925, and noted that the latrine is only 9 feet from the pacca well and close to the well there is an idol of Shivaji installed on a chabutra.
6. The case was eventually taken up on 27th May 1925, Neither party produced any evidence and the Court, on 29th May 1925, made the order absolute. Defendants have filed this revision petition and they say that the proceedings of the Court below were irregular and illegal.
7. The Magistrate was quite justified under Section 139 of the Code of Criminal Procedure in not taking further proceedings for the appointment of a jury when the first jury had failed, but Section 137, cl (1), says that if the objector appears and shows cause against the order, the Magistrate shall take evidence in the matter as in a summons case. So it is clear that after the discharging of the jury it was necessary that the applicant should produce evidence before the Magistrate and then the opposite party should also produce evidence and after the consideration of the whole evidence, the Court may pass such order as it thinks proper.
8. In this case neither party produced any evidence and so there was no evidence in the case which can be called evidence in a judicial proceeding and as such the Court below was wrong in making the order absolute. The cases reported in 6 A.L.J. 685 and A.I.R. 1922 All. 265 bear out the contention of the petitioner in this Court. In fact in this case the defendants had said that Section 133 is not applicable because the privy had not been built upon the road. That question was not gone through in this case; so in my opinion the order of the Deputy Magistrate making the order absolute was wrong and illegal. He ought, to have proceeded according to law and it clear that when the applicant did not produce any evidence, the proper course for the Court was to dismiss the case. I, therefore, submit the record to the Hon'ble High Court for setting aside the order making the order absolute dated 29th May 1925.
9. This is a reference by the learned Sessions Judge of Ghazipur under the following circumstances A notice was issued to the applicants under Section 133 of the Code of Criminal Procedure for the removal of a privy which was alleged to constitute a nuisance as it had been constructed on a public path and only a few paces from a shivalah. They appeared and asked for the appointment of a jury and a jury was duly constituted. The jury however failed to return a verdict as required by Section 139. The learned Sessions Judge has taken the view that the parties were thereby relegated to the same position as when the notice under Section 133 was originally issued. This however is not what the Code lays down. Section 141 provides that if the jury fails to return a verdict within the time allowed in accordance with the law Magistrate may pass such order he thinks fit, and the order shall be executed in the same manner as a final order under Section 140. What the Magistrate did in this case was to inspect the spot and to call for a report from the police. The result of both proceedings was to satisfy him of the correctness of the original order. He found from his inspection that the construction was new, that it did encroach on the road, and that it was so near to the shivalah as to constitute a public nuisance. Under these circumstances the order passed by the Magistrate was not, in my opinion, an illegal order.
10. Let the record be returned.