Debabrata Mookerjee, J.
1. These are two petitions for revision of two orders made by a Magistrate, Erst class, Kandi, whereby ho made absolute under Section 139 Criminal P.G. two conditional orders requiring the petitioners, Mir Ali Newaj and Choudhury Golam Martuza, in Cri. Rev. Cases Nos. 260 of 1955 and 342 of 1955, respectively, to desist from carrying ort the trade in hide and to remove their godowns at Salar, on the ground that the continuance of the business was injurious to public health and physical comfort of the community.
2. The petitioners then applied to the Sessions Judge of Murshidabad for a reference to this Court under Section 438, Cr. P. C., but the learned Judge by an order dated 17-1-1955 disposed of the two applications in the two cases by one order. In the result the learned Judge declined to interfere, whereafter the petitioners applied to this Court and obtained these two Rules which have been heard together and are disposed of by one order.
3. The facts alleged in the two cases are practically the same. On receipt of a complaint from some of the villagers of Salar the learned Sub-divisional Magistrate of Kandi took action under Section 133, Criminal P. C. against the two petitioners, The allegations were that the petitioners had their hide godowns at Salar which were close to human habitation where they stored raw hides etc. in huge quantities which produced noxious smell affecting the health of the neighbouring people and the passers by.
The allegation further was that the petitioners had been granted licences to carry on the business in hides beyond human habitation, but in infringement of the licences they carried on the business and stored hide in the godowns, which they were required to remove.
4. It appears that these petitioners were convicted under Section 278, Penal Code upon the charge of making the atmosphere of the place noxious tothe health of the persons in the neighborhood or passing along the public way, but their convictions and sentences were set aside on appeal.
5. On 3-6-1953 orders were passed by the Sub-divisional Magistrate requiring the petitioners to desist from carrying on the trade and from maintaining the godowns and further requiring them to remove the hides etc., away from the neighbourhood of the public road or human habitation. The petitioners appeared in obedience to the notices. issued and although they admitted that they carried on the trade and maintained the godowns, they denied that they did so at a public place or the trade amounted to at public nuisance.
On 19-8-1953 these petitioners applied before the Magistrate for the appointment of a Jury and accordingly a Jury of five was formed to try the question as to whether the conditional order made by the learned Magistrate referred to above was reasonable and proper.
6. The Jury thereafter returned their verdicts in the two cases but they were divided in the opinions they delivered. The opinion of the majority of the jurors was that the trade might be allowed to continue provided certain minor structural alterations were made in the godowns. The learned Magistrate took this majority view as finding by the Jury that the conditional' orders passed by him were reasonable and proper, and in that view made the orders absolute under Section 139(1), Criminal P. C. It is these orders which are now being challenged before me.
7. Mr. Dutt, appearing in support of the Rule in Cri. Revn. Case No. 260 of 1955, has argued that the order absolute made by the learned Magistrate under Section 139 of the Code has been made in infringement of the terms of that section with the result that that order cannot be held to have been validly made. Mr. Ali, appearing on behalf of the petitioner in Cri. Revn. Case. No. 342 of 1955, has adopted Mr. Dutt's argument.
8. The question therefore that falls to be determined in these two revision petitions is whether in view of the provisions of the Code relating to public nuisance, the orders made by the learned Sub-divisional Magistrate of Kandi in these two cases were made in accordance with law. This would require examination of the relevant provisions contained in Chapter X of the Code.
9. Section 133 (1) provides that if a Magistrate mentioned in the section, on receipt of a police report or other information, considers that the conduct of any trade or occupation or of keeping of any goods or merchandies is injurious to the health or physical comfort of the community and that, in consequence, such trade or occupation should be prohibited or regulated or such goods or merchandise should be removed, such Magistrate may make a conditional order requiring the persons causing the nuisance or carrying on such trade or occupation or keeping such goods or merchandise to remove the nuisance or to desist from carrying on or to remove or regulate in such a manner as may be directed, such trade or occupation within a time to be fixed in the under.
If the person, so directed, objects 'to complywith the order then he has to appear before the Magistrate who issued the conditional order or some other Magistrate named in the order and move to have the order set aside or modified in accordancewith the manner indicated in the subsequent sections of the Chapter.
10. Section 135 requires compliance with the under in the manner specified or gives the party to whom the order has been addressed the right toshow cause against the same or to apply to the Magistrate for the appointment of a Jury to try whether the order so made by the Magistrate is reasonable and proper,
11. Section 138 provides that the Magistrate, on receipt of an application under Section 135 for the appointment of a Jury, shall forthwith appoint a Jury of uneven number of persons not less than five. The constitution and function of the Jury are regulated by the provisions contained in the section, which says that the Foreman, and the members of the Jury will attend at such time and place as the Magistrate might think fit and the latter will fix a date within which the Jury are to return a verdict. The time so fixed may be enlarged for good cause shown.
12. Then follows Section 139 which reads thus: (1) If the Jury or the majority of the jurors and that the order of the Magistrate is reasonable and proper as originally made or subject to a modification which the Magistrate accepts, the Magistrate shall make the order absolute subject to such modification (if any). (2): In other cases no further proceedings shall be taken under this Chapter.
13. It is thus dear from the provisions contained in Section 139, which I have just read, that the conditional order made by the Magistrate can be made absolute under the section only when the Jury or a majority of the jurors find that the order of the Magistrate, as originally made, was reasonable and proper. The sub-section empowers the Jury to suggest modifications and they become effective only when the Magistrate approves of them.
The terms of Sub-section (1), therefore, make the position clear that the Jury is required to pronounce upon the reasonableness and propriety of the order originally made by the Magistrate under Section 133 of the Code. The order such at it is, is to be considered by the Jury and Clause (b) of Section 135 makes the position further clear that the appointment of a Jury is only for the purpose of enabling them to try the question whether or not the order, made by the Magistrate is a reasonable and proper order.
Thus there can be no doubt 'whatever that theonly matter which could legitimately occupy the attention of the Jury is the question of reasonableness or the propriety of the order of the Magistrate.If the Jury find that the order as made by the Magistrate was not proper they will have to return a verdict to that effect. If, on the other hand, they findthat the order made by the Magistrate is reasonableand proper they have to say so. The section gives the Jury in the latter case the power to suggest meremodifications of the order originally made and thosemodifications become effective only when the Magistrate accepts them.
In case the Magistrate chooses not to accept them the modifications cease to have any value whatsoever. In fact, the modifications referred to in Sub-section (1) of Section 139 must presumably be of a very minor character and the verdict of the Jury must in essence be one of approval of the order of the Magistrate as originally made.
14. Thus there can be no doubt that the real effect of the provisions contained in Sub-section (1) of Section 139 read with Section 135 Clause (b) is that the Jury are required to pronounce upon the reasonableness or the propriety of the order of the Magistrate made under Section 133(1). The Jury may bring either of the two verdicts. They may find in favour of the Magistrate's order and declare that the same is a reasonable or proper order or they may hold that the order made by the Magistrate was not reasonable or proper in the circumstances of the case.
It is only when the Jury agree that the order of the Magistrate was a reasonable and proper order that they may suggest modifications and those modifications, as I have already indicated, become effective only when the Magistrate accepts them.
15. Sub-section (2) of Section 139 lays down the procedure to be followed when the Jury does not agree that the order made by the Magistrate was a proper or reasonable order. That sub-section in terms lays down that no further proceedings shall be taken in the matter. It is, therefore, clear that where there is a difference of opinion as between the Magistrate and the Jury as regards the propriety or reasonableness of the order made, the only course left open to the Magistrate is to discharge the proceedings and take no further action in the matter.
16. Turning to the facts of these cases it appears the Jury found by a majority that the businessmight be allowed to continue and the godowns maintained where they were, and they merely recommended some structural alterations of the godownswhich were of a minor character. The learnedMagistrate however proceeded on the footing thatthe verdict thus delivered amounted to a declaration by the Jury that the orders made by him in thetwo cases were reasonable and proper.
I fail to see how the verdicts thus brought can be interpreted in this manner. The only question before the Jury was whether the conditional orders that had been made in the two cases were reasonable and proper orders. The Jury by their verdicts declared that they were not proper orders inasmuch as they opined that the trade might be continued and the godowns might be maintained where they were,
The verdict must therefore, be taken to mean that they found that the orders made by the Magistrate were not proper orders. They did not regard the continuance of the trade or the business and the maintenance of the godowns as injurious to public health. They made merely some suggestions which do not alter the character of the verdicts and which cannot possibly be taken to be 'modifications' of the orders.
The real effect of their verdicts can only be that the orders made by the Magistrate were not proper or were not reasonable. There can be little doubt that the Jury wished the petitioners to continue the trade or the business. They only suggested some minor structural modifications to the go-downs.
17. Strictly speaking the modifications suggested by the Jury do not come within the terms of Sub-section (1) of Section 139. The language of this sub-section, upon a plain reading, is capable of one construction, and that is where the Jury think that the order of the Magistrate is a proper and reasonable but they wished to suggest some modifications to it, they can do so under the provisions of that sub-section.
The modifications must be modifications of theorder requiring removal of the nuisance. That being so, the Jury must in essence agree that the ordersmade were proper and reasonable to which the modifications relate. In the present case, however, theJury by their verdicts declared that the two petitioners should be allowed to continue the trade.The substance of the verdicts thus delivered is thatthe orders made by the Magistrate requiring discontinuance of the trade and removal of the godownswere not reasonable or proper.
The learned Magistrate completely misread the verdicts and ignored the clear provisions of Sub-section (2) of Section 139 and made the orders absolute which are now being questioned before me.
18. If it is found, as it must be found, that the effect of the verdicts of the Jury in the two cases was that the two orders made by the Magistrate were not reasonable or proper, the only counsel left open to the Magistrate was to discharge that proceedings and to take no further action in the matter.
Instead of that the learned Magistrate wrongly interpreted the verdicts of the Jury and made the orders passed under Section 133(1) absolute 'under Section 139(1) of the Code. There can he no manner of doubt that the learned Magistrate completely mis-directed himself in regard to the true import of Section 139(1) of the Code and as such the orders absolute passed by him under that sub-section cannot possibly be sustained.
19. The result, therefore, is that these twoRules are made absolute and the orders made by thelearned Magistrate in the two cases purporting tohave been passed under Section 139, Criminal P. C. areaccordingly set aside.