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Rebati Mohan Bose Vs. Chottal Chandra Sen - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1936Cal692,166Ind.Cas.221
AppellantRebati Mohan Bose
RespondentChottal Chandra Sen
Excerpt:
- .....some future nuisance. that contention, no doubt, is correct. but that is not what the magistrate has done in this case. his order under section 137 was not made in respect of some future nuisance. it was made in respect of the nuisance which existed when the proceedings under section 133 commenced. section 142 provides merely for issue of injunctions pending inquiry and the magistrate made an order under this section to obviate or prevent imminent danger or injury pending the determination of the matter. it is clear that the section intends the order to meet an immediate danger or injury and its object is to prevent that injury pending the determination of the case under section 133 or section 137. in my opinion therefore the magistrate not only is not precluded from making a final.....
Judgment:

Lort-Williams, J.

1. In this case, a rule was issued calling upon the District Magistrate and the opposite party to show cause why a certain order should not be set aside. It appears that an order was made under Section 133, Criminal P. C., directing the petitioner to remove certain obstruction in a Khal which was claimed to be a public Khal belonging to the Municipality. The petitioner proceeded under Section 135 and appeared in accordance with the order to show cause why the obstruction should not be removed. Subsequently and before hearing either the evidence or arguments, the Magistrate made an order under Section 142 and directed the petitioner immediately to remove the obstruction. Subsequently, he proceeded with the hearing and made a final order under Section 137 against the petitioner.

2. The petitioner's present contention and the contention which he made before the learned Sessions Judge at Chittagong, is that owing to the fact that the Magistrate made an order under Section 142 which was complied with, he was precluded from continuing with the case and from making a final order under Section 137. This contention is based upon the argument that an order under Section 137 can only be made, where there is an existing obstruction cr nuisance and cannot be made in respect of some future nuisance. That contention, no doubt, is correct. But that is not what the Magistrate has done in this case. His order under Section 137 was not made in respect of some future nuisance. It was made in respect of the nuisance which existed when the proceedings under Section 133 commenced. Section 142 provides merely for issue of injunctions pending inquiry and the Magistrate made an order under this section to obviate or prevent imminent danger or injury pending the determination of the matter. It is clear that the section intends the order to meet an immediate danger or injury and its object is to prevent that injury pending the determination of the case under Section 133 or Section 137. In my opinion therefore the Magistrate not only is not precluded from making a final order under Section 137, but Sub-section 133, 137 and 142 taken together clearly mean that the Magistrate .in spite of making an order under Section 142 is intended to proceed with the case and make a final order under Section 137. For these reasons the rule is discharged.

Cunliffe, J.

3. I agree.


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