JAGDISH NARAIN Vs. DHANUSHDHARI PRASAD

JUDGEMENT

(1.) This is a reference by the Sessions Judge of Patna in a case of certain proceedings which were started by the first party against the second party on an allegation that the second party was committing a nuisance. It appears that the first party had a privy which has hitherto been cleaned from the outside by mehtars who approached over land in which the second party is not interested, but the first party has lately altered his arrangements and opened his privy on to land in which the second party claims an interest.

(2.) The second party has apparently erected a door to prevent access to the first party's privy and claims the right so to do on two grounds, firstly, the second party says that the first party's privy is in itself a nuisance and secondly he claims the right to have the door shutting out access to land which is his own property. The Magistrate proceeded to act under Section 143, Criminal P.C., which runs thus: A District Magistrate or Subdivisional Magistrate, or any other Magistrate empowered by the Local Government or the District Magistrate in this behalf may order any person not to repeat or continue a public nuisance, as defined in the Indian Penal Code or any special or local law. Now, the object of this section is to give the Magistrate summary powers to issue an order against a person who is repeating or continuing a public nuisance, that is to say who has repeated an act which has already been forbidden by a competent tribunal.

(3.) It is not for original use. When the matter came before the Magistrate he said in his judgment that the right raised by the second party was a matter properly to be adjudicated by the Civil Court and he refused to consider the second party's claim of right. This attitude followed logically upon his view of the proper construction of S.143. It is clear that the second party who is alleged to have committed the nuisance must have the right to set up a defence on the merits and the summary order should not have been made without giving him an opportunity of being heard under the other sections of Chap. 10, Criminal P.C., which provides procedure for that purpose.