1. This rule was issued calling on the District Magistrate of Midnapore to show cause why certain proceedings drawn up against the petitioners under Section 133, Criminal P.C., should not be quashed, or such other order made as this Court might deem fit and proper upon grounds 2, 3 and 5 in the petition to this Court. The first of these grounds is that the proceedings in question are bound to cause irreparable mischief to the lawful and legitimate trade of the petitioners, and as such proceedings are not contemplated by the criminal law. The next ground is that the Courts below have erred in law in construing Section 133, Criminal P.C., and that upon a proper interpretation of the section they ought to have held that it has no application whatsoever to the facts and circumstances of the case. The third and last ground is that the procedure adopted by the Court below has been illegal and without jurisdiction and has operated to the serious prejudice of the petitioners.
2. It appears that these proceedings have had their origin in rivalry which had arisen between two steamer companies, namely, the Calcutta Steam Navigation Co. Ltd., and the Ghatal Steam Navigation Co. Ltd. There was evidently keen competition between these companies and their agents have been lying with one another in trying to attract passengers for their respective companies. In the order which has been drawn up by the learned Magistrate three matters hive been specified for the purpose of justifying the order under Section 133, Criminal P.C. Firstly, the alleged practice of taking up passengers from boats; secondly, the allegation that the petitioner company is in the habit of taking up passengers from places other than the recognized jetties ordinarily used for the purposes; and thirdly, that as a result of these practices backwash is caused and that this involves danger to the public. The broad question is whether, 'having regard to the facts and circumstances of' this case, the provision of Section 133, Criminal P.C. have been rightly applied. In my judgment that section has no application whatever to the facts and circumstances of a case such as the present. It is to be observed that Chap. 10, in which this section is included, deals with public nuisances, and it would certainly be a straining of language to hold that the acts which have been described above constitute a public nuisance. The only part of the section which could be deemed to apply is para. 3, which is in the following words:
That the conduct of any trade or occupation, or the keeping of any goods or merchandise, is injurious to the health or physical comfort o the community, and that in consequence such trade or occupation should be prohibited or regulated or such goods or merchandise should be removed or the keeping thereof,regulated.
3. In my, opinion this section deals only with occupations or trades which are in themselves injurious to health and has nothing whatever to do with, trades which in themselves are harmless, but in the course of which a public nuisance might be committed. I have no doubt whatever that the section was never intended to apply to the facts and circumstances of a case such as the present.
4. The result, therefore, is that this rule must be made absolute and the proceedings in question quashed. This order1 will not interfere with the discretion of the Magistrate or prevent him from taking any other steps under any other section of the law which may be considered to be applicable.
S.K. Ghose, J.
5. My own view is that by the amendment in para 3, Section 133, Criminal P.C., that section has been amplified, so that its scope has been widened. It seems to me that it can no longer be said that the section is confined to trades which are injurious in themselves; on the contrary it applies to cases of trades which become, injurious by reason of the conduct of them. It will be noticed that the words, 'conduct' and 'regulate' occur for the first time in the amended section. But having regard to the facts and circumstances of the case, I agree with my learned brother that the rule should be made absolute.