Guha Ray, J.
1. This revisional petition is directed against an order by a Magistrate, First Class, How-rah, sitting as a Municipal Magistrate by which the petitioners, who are the owners of a factory known as Anchor Aluminium works, were directed to remove within thirty days of the order, i.e., by 25-7-1956 their factory to a different site failing which it would be open to the Howrah Municipality to stop the nuisance by not allowing the factory to run there, with police help, if necessary. The order was made under Section 535, Calcutta Municipal Act 1923 which has been extended to Howrah. It was made after an enquiry on the petition of certain persons of the locality that the factory was a public nuisance because of the smoke which came out of it, the rattling sound of its machineries and the nasty smell emitted from the factory. The defence of the petitioners was that there was no smoke nuisance, no-rattling sound and no nasty smell and that this was-a proceeding taken by the Municipality against the petitioners out of malice as they failed to secure the conviction of the petitioners in two cases under Sections 385 and 386, Calcutta Municipal Act. On behalf of the first party, i.e., the Howrah Municipality five witnesses were examined and two witnesses were examined on behalf of the defence. The Health : Officer of the Howrah Municipality was examined as a Court witness. The learned Magistrate who passed the order was not the Magistrate who heard the evidence. He was evidently the successor of the Magistrate who heard the evidence. He made a local inspection, before making the order, in the presence of both the parties-and this is stated in this order-sheet and in the order itself-in order to appreciate the evidence more fully.
2. The first point raised on behalf of the petitioners is that the learned Magistrate although he made a local inspection of the factory under Section 539B (1) of the Code of Criminal Procedure did not record a memorandum of the relevant facts observed at such inspection as he was required to do under Section 539B (1) of the Code. On behalf of the Howrah Municipality it is contended in the first place that the proceeding before the Magistrate was not a criminal proceeding at all and the provisions of Section 539B of the Code of Criminal Procedure have no application to such proceedings. That these proceedings were before a Magistrate who is an inferior criminal Court within the meaning of Section 439 of the Code of Criminal Procedure is the view taken by a Division Bench of this Court in the case of Pnnchu Copal Mondal v. Corporation of Calcutta : AIR1953Cal410 . In that case the proceeding before the Magistrate was a proceeding under Section 363 of the Calcutta Municipal Act. On behalf of the Howrah, Municipality reliance was placed on the case of Krishen Doyal v. The Corporation of Calcutta : AIR1927Cal509 in which it was held that the persons proceeded against under Section 363 of the Calcutta Municipal Act were not accused persons within the meaning of the Code of Criminal Procedure and were not exempt from administration of oath under Section 342 of the Code. The mere fact that such persons, are not accused persons, us persons proceeded against under Sections 133, 107 etc. under the Code of Criminal Procedure itself are not accused persons, does not go to indicate that it is not a criminal proceeding. On the other hand, the very nature of the proceedings indicates that they are quasi-criminal at least, and where an order for demolition of an existing building is to be made or where the removal of a nuisance is to be ordered, the proceedings are certainly of a quasi-criminal nature, and as the Municipal Act itself does not lay down a procedure for the inquiry, there is hardly any reason why the Magistrate, who is to hold the inquiry, should not follow the provisions of the Code of Criminal Procedure. Although Section 5 of the Code of Criminal Procedure specifically refers to investigations, inquiries into and trials of offences under the Indian Penal Code or under any other law, that does not mean that proceedings under other Acts, although they are of a quasi-criminal nature, will not be governed by the Code of Criminal Procedure, where, of course, the Act in question under which the proceedings are taken has not laid down any special procedure to be followed. From this point of view the proceedings must be held to be governed by the provisions of the Code of Criminal Procedure and the Magistrate, therefore, must have held the local inspection under Section 539B of the Code of Criminal Procedure; and if he did so, he was bound to record memorandum of inspection as early as possible after the inspection. The fact, however, that he did not record it would not make the subsequent proceedings a nullity. But his failure to record a memorandum must be held in the circumstances of this case to have seriously prejudiced the petitioners, because in 'the first place, the learned Magistrate did not hear the evidence himself and so was not in a position to judge that evidence in the same way as the Magistrate who heard the evidence and had occasion to notice the demeanour of the witnesses in the witness 30X, secondly, when he himself thought that a local inspection was necessary so as to enable him to appreciate the evidence more fully, he should have placed on record what he himself saw during the local inspection and he should have considered what he saw in dealing with the evidence before him. The fact that he did not place on record at all what he had seen inclines one to the view that he did not' consider at all what he had himself seen during his local inspection.
3. In these circumstances, the order of the learned Magistrate must be set aside and the matter sent back to him for disposal according to law. As he made a local inspection but did not prepare any memorandum of such inspection, he should make another local inspection and record a memorandum of what he saw and then he should consider the evidence before him. Before, however, he passes his order then parties should be given a hearing, preferably after the local inspection.
4. The rule is accordingly made absolute.