KRISHNA MOHAN BANERJEE Vs. AKGUHA

JUDGEMENT

(1.) This Rule is directed against an order purporting to be made under Section 137, Criminal Procedure Code.

(2.) The circumstances are as follows:--The first petitioner has an iron yard in Howrah and the second petitioner is his employee. The Principal of a Training School near the yard complained to the District Magistrate that an intolerable noise was made in the yard. After a Police enquiry the Sub-Divisional Magistrate issued a notice under Section 133, Criminal Procedure Code, calling upon the petitioners to abate the nuisance or to show cause against the order. They did show cause, and they did not ask for the appointment of a Jury, so the Magistrate dealt with the matter under Section 137, and as he was not satisfied that the order was not reasonable he made the order absolute.

(3.) The Rule was issued on three grounds, and they are in effect that the noise is not in fact a nuisance, that it is made in carrying on a lawful trade, and that the Magistrate had no jurisdiction to make the order. In regard to the first ground, it is said that the evidence is not of such a nature as to establish that the noise is a nuisance to the community, while the second and third grounds which are really the same, are based on the fact that the first petitioner holds a license for the iron yard issued by the Municipal Commissioners of Howrah. On the strength of this license it is urged that the trade must be recognised as a lawful trade, and that no order under Section 133, Criminal Procedure Code, can be passed respecting it.