1. This Rule is directed against an order purporting to be made under Section 137, Criminal Procedure Code.
2. The circumstances are as follows:--The first petitioner has an iron yard in Howrah and the second petitioner is his employee. The Principal of a Training School near the yard complained to the District Magistrate that an intolerable noise was made in the yard. After a Police enquiry the Sub-Divisional Magistrate issued a notice under Section 133, Criminal Procedure Code, calling upon the petitioners to abate the nuisance or to show cause against the order. They did show cause, and they did not ask for the appointment of a Jury, so the Magistrate dealt with the matter under Section 137, and as he was not satisfied that the order was not reasonable he made the order absolute.
3. The Rule was issued on three grounds, and they are in effect that the noise is not in fact a nuisance, that it is made in carrying on a lawful trade, and that the Magistrate had no jurisdiction to make the order. In regard to the first ground, it is said that the evidence is not of such a nature as to establish that the noise is a nuisance to the community, while the second and third grounds which are really the same, are based on the fact that the first petitioner holds a license for the iron yard issued by the Municipal Commissioners of Howrah. On the strength of this license it is urged that the trade must be recognised as a lawful trade, and that no order under Section 133, Criminal Procedure Code, can be passed respecting it.
4. The contention that the evidence is deficient has no force in it; evidence is not to be judged by volume and the witnesses prove satisfactorily that the noise is injurious to the physical comfort of the community.
5. The other arguments amount to a contention that because the petitioner No. 1 has a license, the Magistrate has no jurisdiction to proceed against him under Section 133, Criminal Procedure Code. I am disposed to think that the Magistrate would have acted more wisely in advising the complainant to set in motion the machinery provided by Act III (B.C.) of 1899, but the existence of an alternative remedy does not deprive the Magistrate of jurisdiction. Further the order of the Magistrate does not curtail the petitioner's rights under his license, for it does not order him to suppress or remove his business but to abate the nuisance, and one of the terms of the license is to the effect that the license must not cause annoyance to his neighbours.
6. Under these circumstances I do not think we should interfere in the matter. The Rule is discharged.
Shamsul Huda, J.
7. I agree.