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Judgment
Das Gupta, J.—The main point taken on behalf of the petitioner in support of the application against an order passed by the learned Magistrate, Barrackpore, u/s 133, Cr. P. C, is that the learned Magistrate had no jurisdiction to pass such order. It appears that an application asking for proceeding for action under sec. 144, Cr. P. Code, was filed on behalf of the Garulia Municipality, before the S.D.O. of Barrackpore. The S.D.O. without taking any action himself transferred the petition to Mr. S. R. Bhattacharya. Mr. Bhattacharya while holding that there was no case for action being taken u/s 144. Cr. P. Code, considered that action u/s 133, Cr. P. C, was called for and so drew up proceedings under that section calling upon the petitioners to cease carrying on the trade of manufacturing bricks in holding No. 124 of the Municipality or to appear before him to show cause why that order should not he enforced. UltimateV after evidence had been recorded by Mr. Bhattacharya, he was transferred before argument could be heard. Thereupon the S.D.O. withdrew the proceedings to his own file and transferred them to Mr. S. M. Mukherjee. Mr. S. M. Mukherjee made the final order in the case against which the petition is directed.
Mr. Banerjee contends that the initial order of transfer of the application which was for action u/s 144, Cr. P. C, was invalid in law. In my judgment there is no substance in this contention. Section 192 of the Code of Criminal Procedure which empowers a Subdivisional Magistrate to transfer cases to other Magistrate is in these words :
...the Subdivisional Magistrate may transfer any case of which he has taken cognisance, for enquiry or trial, to any Magistrate subordinate to him.
It has been held by this court in several cases that this provision is not limited to only the eases if such cognisance is taken u/s 190, Or. P. C.
Mr. Banerjee has tried to convince us that an application u/s 144, Cr. P. C, does not call for an enquiry and consequently when such an application is filed before a Magistrate it is not right to say that he has taken cognisance of it for enquiry. I am unable to agree that an application u/s 144. Cr. P. Code, does not call for any enquiry. What section 144, Cr. P. C, provides is that in cases where in the opinion of a District Magistrate, a Chief Presidency Magistrate, a Subdivisional Magistrate or any other Magistrate especially empowered, there is sufficient ground for proceeding u/s 144, and immediate prevention or speedy remedy is desirable, he may take the necessary action directing persons to abstain from certain acts or to do certain acts. It further provides that in cases of emergency such an order can be passed ex parte and further that when application of a person aggrieved by an order is received, the Magistrate shall afford to the applicant an early opportunity of appearing before him either in person or by pleader and show cause against the order.
Quite clearly where the Magistrate gives an opportunity to a person aggrieved by an order of appearing before him to show cause against the order, he has to hold an enquiry. In my judgment it is the rule rather than an exception when any application for action u/s 144, Cr. P. C, is made, that the party aggrieved by an order that has been made will appear to show cause and that an enquiry will have to be made. Even apart from that, however, I am of opinion that the very act of forming an opinion whether action should be taken u/s 144, Cr. P. C, cannot he formed by any Magistrate without looking into the papers or examining persons. This, in my judgment, will amount to an enquiry within the meaning of section 192, Cr. P. C. My conclusion therefore is that when a Subdivisional Magistrate received an application for action u/s 144, Cr. P. C, and applies his mind to it for deciding whether or not action should be taken he takes cognisance of the same for enquiry, and that he can therefore transfer it under the provisions of section 192, Cr. P. C, to a Magistrate subordinate to him. Clearly, however, "such Magistrate will not be able to take action u/s 144, Cr. P. C, unless he happens to be one of the Magistrates specified in that section.
It follows that the Subdivisional Magistrate could u/s 528(2) withdraw the case to his own file and transfer it to Mr. S. M. Mukherjee.
It was not contended by Mr. Banerjee that the trade that was carried on could not be said to amount to such a public nuisance as required prohibition. On this matter I do not think we will be justified in interfering with the conclusion of the Magistrate based as it is on a consideration of the evidence. It is sufficient to mention the learned Magistrate''s finding that the bricfield is within 200 yards of the inhabited locality and the evidence of the doctor which has been accepted by the Magistrate that the ditches in the brick field are breeding ground for mosquitoes. I would therefore discharge the rule.
Debabrata Mookerjee, J.
I agree.