JUDGMENT 1. This Rule is directed against an order passed by a Municipal Magistrate of Calcutta under s. 440 of the Calcutta Municipal Act of 1951 whereby he has restricted the working hours of a factory run by the petitioner from 10 a. m. to 5 p. m. and has also directed discontinuation of loading and unloading of trucks beyond the said hours. The petitioner was further directed to remove the tinshearing and angle-shearing machines from the factory within six months from the date of the order. 2. The petitioner has his workshop at No. 23/1 Tagore Castle Street, Calcutta. He was prosecuted under section 437 (1) (a) of the Calcutta Municipal act, 1951 for contravention of item no. 8 of schedule XVIII relating to the storing, pressing, etc. of iron materials in excess of the permissible quantity and was convicted under section 437 (1) (a)/537 of the Act for the said offence on his plea of guilt and was sentenced to pay a. fine of Rs. 60/ -. That was on april 17, 1963. On May 1, 1963 the Sanitary officer of the Calcutta Corporation filed a petition under section 440 of the C. M. Act prayfor action against the petitioner on the ground that nuisance is continuing in premises no. 23/1, Tagore Castle Street even after the conviction of the petitioner under sec. 437/537 of the Act. The learned Magistrate took evidence in support of the allegations and found that the factory of the petitioner "emits disturbing sound which causes nuisance to the neighbourhood and even during the night the loading and unloading of trucks cause sound which disturb the sleep of the inmates of the neighbouring places". On this finding he came to the conclusion that the premises in question is kept in such a state as to be a nuisance. Pursuant to this finding of his, the order moved against followed. 3. Mr. Talukdar appearing in support of the Rule contends that the learned Magistrate was wholly erroneous in the procedure that he followed in the case and also in his view of the interpretation of section 440 of the C. M. Act. According to Mr. Talukdar, under section 440 of the Act should follow directly from the conviction in the main case. Talukdar appearing in support of the Rule contends that the learned Magistrate was wholly erroneous in the procedure that he followed in the case and also in his view of the interpretation of section 440 of the C. M. Act. According to Mr. Talukdar, under section 440 of the Act should follow directly from the conviction in the main case. As in the present case, on the allegation against the petitioner in support of his prosecution u/s 437 (1) (a)of the Act there was no case of any nuisance made out against the premises in question, no action under section 440 of the Act could be taken. 4. Mr. Basu, learned Advocate for the Corporation of Calcutta took up the position that section 440 of the act envisages a separate proceeding which can be initiated on the conviction. of an accused under any of the clauses of section 437 (1) of the C. M. Act and that nuisance resulting from the user of the premises in question can be found independently of the allegations on which the accused was previously prosecuted and subsequently convicted. According to him, the words "shall" and 'also' in section 440 merely emphasise the power of the magistrate in the matter of the action which can be taken thereunder. Section 440 of the C. M. Act does not create any offence. What in effect it says is that whenever a Magistrate convicts any person for any offence under section 437 if it is proved to his satisfaction that the premises in question is kept in such a state as to be a nuisance, he shall also direct that the use of the premises for such purpose be stopped within a specified period. I have underlined above the words 'shall' and 'also' and in my view, the use of the word 'also' in particular serves as the key to the interpretation of section 440. As this section stands, any action taken thereunder must, in my opinion, follow directly from the allegations made against the accused in the prosecution against him for an offence under section 437. It is meant to be consequential order - consequential to the conviction referred to in the section and limited to the nature and character of the offence concerned. As this section stands, any action taken thereunder must, in my opinion, follow directly from the allegations made against the accused in the prosecution against him for an offence under section 437. It is meant to be consequential order - consequential to the conviction referred to in the section and limited to the nature and character of the offence concerned. In section 437 there may be scope for creation of a nuisance under clauses (a), (b) and (c) of sub-section (1) of the section. If any person is accused of an offence under section 437 of the Calcutta municipal Act which might also give rise to a nuisance and if is proved at the trial to the satisfaction of the Magistrate that the act constituting the offence does entail a nuisance, the accused after his convction in the case would be liable also to be directed to take the action prescribed in section 440. 5. So far as the allegations against the petitioner in the case under section 437, C. M. Act are concerned, it was stated that he was storing in his godown iron articles in excess of the permissible quantity. No allegations of disturbing sounds by shearing machines working in the premises or by loading and unloading of trucks during night being created to the annoyance of the neighbours, were made in the case. By no stretch of imagination can storage of iron materials in a godown create a nuisance. The allegations made in that case thus are unrelated to any nuisance that was alleged against the petitioner in the petition praying for action under section 440 of the Act. What the learned Magistrate did was to take evidence in support of fresh allegations which were never made at the time of prosecuting the petitioner under section 437 of the Act. It was a completely separate and independent enquiry held by him in the proceeding an enquiry unrelated to the prosecution resulting in the conviction of the petitioner and unrelated to the allegations earlier made against him. This sort of enquiry in my view is not contemplated in section 440 of the Act. It was a completely separate and independent enquiry held by him in the proceeding an enquiry unrelated to the prosecution resulting in the conviction of the petitioner and unrelated to the allegations earlier made against him. This sort of enquiry in my view is not contemplated in section 440 of the Act. If any nuisance is really created in the premises in possession of the petitioner there will be scope for a further prosecution of the petitioner under the relevant provision of section 437 of the Act and if there is a conviction in that case there will be scope for action under section 440 of the Act thereafter. So far as the present proceeding before the learned Municipal Magistrate is concerner, this in my view was wholly misconceived, unrelated as it was to the facts on which the petitioner was prosecuted and convicted under section 437/537 of the Calcutta municipal Act. 6. In the above view of the matter the order moved against must be set aside. The Rule accordingly is made absolute. The order of conviction and sentence passed on the petitioner is set aside and he is acquitted.