1. This reference under Section 438. Cr. P. C. arises out of certain proceedings under Section 133 Cr. P. C. On the 18th June 1948, proceedings under Section 133 were drawn up against Dwip Narayan Singh alleging that he was causing a public nuisance by (1) obstruction and encroachment on the public pathway leading to the ghats by excavating earth beyond limit, (2) by accumulation of filthy water in the excavated ditches during the rains and (3) by creating smoke nuisance and final orders were passed under Section 137. The learned Magistrate did not find nuisance numbers (2) and (3) mentioned in the conditional order. He was satisfied however that there were some obstructions in the Bagdipara Ghat Road, one of the three public roads alleged to have been affected by the brick-field of Dwip Narayan Singh and the latter was ordered to remove all the obstructions from the Bagdipara Ghat Road including the brick-Kiln by the side of it.
2. In the opinion of the learned Additional Sessions Judge, this order is bad mainly on three grounds, first, the Magistrate sitting alone was not entitled under Section 137 Cr. P. C. to modify the conditional order made under Section 133 secondly, the final order having been made on-a ground which was not mentioned in the conditional order was illegal and thirdly, the original conditional order itself was vague in that he did not specify the three public roads or pathways.
3. As regards the first point, the learned Judge has relied upon the case of 'Juje D'Silva v. Kashmir D'Silva', AIR (30) 1943 Mad 335 in support of his view that a Magistrate, sitting alone cannot modify an original order before making it absolute. On behalf of the First Party, reliance is, however, placed upon the case of 'Emperor v. Jhau Lal', 26 Cri L J 731 (2) (All), where it has been laid down that modification of the original conditional order is permissible in suitable cases. The first decision is that of a single judge of the Madras High Court while the second decision is also that of a single Judge of the Allahabad High Court. In my opinion, in view of the precise wording of clause 3 of Section 137Cr. P. C. the Madras case seems to be correct. That clause lays down that if the Magistrate is not satisfied with the cause shown against the conditional order made under Section 133 Cr. P. C. the order shall be made absolute. Section 139 clause (1) mentions that in certain cases referred to a jury the Magistrate is competent to make the conditional order absolute subject to a modification which the Magistrate accepts. There is no such qualification about modification so far as Section 137 is concerned. There is no specific provision in the Act which authorises the Magistrate when passing an order under Section 137 to make the order absolute subject to any modification. In these circumstances. I am inclined to the view that under Section 137 no modification is permissible.
4. As regards the second point, reliance has been placed before me on behalf of the second party upon the case of 'Gokal Chand v. Emperor', 21 Cri L. J 462 (Lah). The proposition of law seems to have been correctly laid down in that, ruling. Applying that principle to the' facts of the present case, it appears that the final orders of the learned Magistrate under Section 137 were based upon a ground namely, obstruction by causing heat, which is not to be found in the conditional order. This has been pointed out clearly in the Letter of Reference by the learned Additional Sessions Judge and I am in agreement with his observations on the point.
5. Then again as regards the third point, namely, that the original order was vague and -as such it ought not to have been made absolute, reliance has been placed before me on behalf of the Second Party on the case of 'Kali Mohan v. Nakari Chandra', 11 Cri L J 213 (Cal). Reference has also been made to the case of 'Bhagat Pershad v. Ramrup', 16 Cri L J 160 (Cal) for the proposition that the original order is vague and indefinite on the ground that the extent of encroachment alleged by the first party has not been defined precisely. It is clear-enough that the conditional order was somewhat vague and indefinite. Though the second party might, in the circumstances of the present case, have been well aware that the pathways referred to in the conditional order meant the three public pathways, namely, Mannapara Ghat Road, Mistri Ghat Road and Bagdipara Ghat Road, it is difficult to escape the conclusion that he was misled on account of there having been no precise indication as to how far the excavations had encroached into the public -pathways and to what extent it was necessary to fill those excavations. This aspect of the case has also been adverted to by the learned Additional Sessions Judge in his letter of Reference.
6. On all these grounds, therefore, I am of opinion that the Reference should be accepted.
7. The result, therefore, is that the modified absolute order of the Magistrate is set aside and the present proceedings are dropped. As suggested by the learned Judge, if there is no legal bar, the learned Magistrate may serve a fresh notice according to law.