Bhupen Guha v. Dilip Kumar Bose — 1970 DIGILAW 207 (CAL)

Judgment 1. THIS Rule is at the instance of the second-party petitioner against two orders dated the 10th June, 1970, and 24th June, 1970, passed by Sri K. C. Mallick, Magistrate, 1st Class, Sealdah, district 24-Parganas in Miscellaneous petition No. 409 of 1970/- M. 150/70 under section 142 of the Code of Criminal Procedure. 2. THE facts leading on to the Rule are short and simple. The first-party, dilip Kumar Bose, is a resident of 1, Jugipara Lane, Calcutta. The second party, Bhupen Guha, is the owner of two small factories carried on under the name and style, Guha and Company at premises No. 236/1, Vivekananda Road and. 57/6, Raja Dinendra Street, for some years. An application under section 133 criminal Procedure Code was filed by the first-party before the learned police Magistrate at Sealdah against the second-party as also his wife, Sm chhayarani Guha. The learned Police magistrate thereupon by his order dated the 13th May, 1970, directed the officer-in-charge, beliaghata Police Station to enquire and report by the 27th May, 1970, and further directed that in the meanwhile no breach of the peace may take place. The report ultimately arrived and on a perusal thereof, the learned police Magistrate by his order dated the 28th May, 1970, drew up proceedings against the two members of the second-party under section 133 Cr. P. C. directing them to desist from carrying on the trade or regulate it so that no noise is caused to the discomfort of the residents or to show cause before Sri k. C. Mallick, Magistrate, 1st Class, sealdah by the 20th June, 1970. Notices were accordingly issued. P. C. directing them to desist from carrying on the trade or regulate it so that no noise is caused to the discomfort of the residents or to show cause before Sri k. C. Mallick, Magistrate, 1st Class, sealdah by the 20th June, 1970. Notices were accordingly issued. On the 10th June, 1970, the learned Magistrate went through the application filed by the first-party as also a mass petition filed by one Lakshmi Narayan Chatterjee and others and also certain affidavits filed on behalf of different persons and after hearing the lawyer of the applicant and going through the connected papers, the learned Magistrate was satisfied that there was a chance of the adjoining houses being cracked and damaged due to the hammering done by the members of the second-party in their factory and in that view he considered that immediate action under section 142 Criminal Procedure Code was necessary to prevent the imminent danger and accordingly issued an order of injunction against the two members of the second-party asking them to stop the functioning of the factory forthwith at the aforesaid two premises wherein they have been carrying on the business. Cause was directed to be shown by them on the date fixed. A prayer thereafter was made on behalf of the second-party for vacating the order dated the 10th June, 1970, and on the 15th June, 1970, the learned Magistrate heard both the sides and ultimately by his order dated the 24th June, 1970, he rejected the application filed on behalf of the second-party far vacating the order of injunction passed under section 142 Cr. P. C. This order has been impugned and forms the subject-matter of the present Rule. Mr. Jahar Lal Roy, Advocate (with Mr. Ram Chandra Srivastava advocate) appearing in support of the rule on behalf of the second-party petitioner, bhupen Guha, has made a twofold submission. Mr. Roy has contended in the first instance that there has been a non-conformance to the mandatory provision of section 142 Criminal procedure Code vitiating the resultant proceedings inasmuch as, amongst others the learned Magistrate who passed the order under section 142 Criminal procedure Code is not the magistrate who made the order under section 133 of the Code. Mr. Roy contended in the second place that the order dated the 10th June, 1970, is dehors the conditional order passed by the learned magistrate under section 133 Cr. Mr. Roy contended in the second place that the order dated the 10th June, 1970, is dehors the conditional order passed by the learned magistrate under section 133 Cr. P. C. on the 28th May, 1970, and as such is bad and repugnant. Mr. Sudhir Gopal poddar, Advocate (with Messrs. Kali chanran Sen and Sudhir Kumar Sen choudhury, Advocates), appearing on behalf of the first party-opposite party, joined issue. Mr. Poddar contended in the first instance that the words "a magistrate making an order" used in section 142, Criminal Procedure Code were not confined to the Magistrate making the order under section 133 of the Code but to any Magistrate as, otherwise the intention of the legislature would be unnecessarily circumscribed. Mr. Poddar further submitted that some meaning and effect must be given to the provision of the statute as otherwise this dominant intention behind the same cannot be given effect to and the legislature abhors redundancy. As to the second contention of Mr. Roy, Mr. Poddar submitted that the objection taken by him is more technical than real because there is precious little difference between the conditional order passed on the 28th may, 1970 and the order of injunction passed under section 142, Criminal procedure Code, on the 10th June, 1970, inasmuch as the latter is included within the former. Mr. J. M. Banerjee, advocate, appearing on behalf of the state opposed the Rule, Mr. Banerjee contended that the objections taken by Mr. Roy to the maintainability of the proceeding are unwarranted and untenable and at this stage of the proceedings the same should not be quashed for a purported non-conformance to the provision of section 142 Criminal Procedure code. In course of the argument it appeared that there is no direct case on the point as to whether the words "a Magistrate making an order" used in section 142 (1) Criminal Procedure Code mean "the Magistrate" who had passed the original order under section 133, Criminal Procedure Code. Mr. J. M. Banerjee, Advocate, appearing on behalf of the State submitted than the points appears to be one of first impression and Mr. Poddar also agreed that it was so. Mr. Roy appearing in support of the Rule also could not cite any decision on the point but merely pinpointed the provisions of section 142, Criminal Procedure Code, in support of his submission made in this behalf. Poddar also agreed that it was so. Mr. Roy appearing in support of the Rule also could not cite any decision on the point but merely pinpointed the provisions of section 142, Criminal Procedure Code, in support of his submission made in this behalf. In view of the importance of the points raised appearing to be one of first impression, the Court requested Mr. Nalin Chandra Banerjee, a senior member of the Bar, to assist the Court as Amices Curiae and Mr. Banerjee was good enough to agree. Mr. Banerjee thereafter made his submission as to the interpretation of section 142 (1)Criminal Procedure Code, and the same would be considered in their proper context. 3. HAVING heard the learned advocates, appearing on behalf of the respective parties and on going through the materials on the record, I find that the first contention raised by Mr. Roy is one of law and of some importance. The point involved is whether the words "a Magistrate" as used in section 142 (1)Criminal Procedure Code mean "the magistrate" passing the original order under section 133, Criminal Procedure code, or any other Magistrate to whom the matter may be transferred either under section 133 (1) or under section 192 of the Code of Criminal Procedure. Mr. Roy contended that some meaning and effect must be given to the words used by the legislature in the provision of section 142 (1) Criminal Procedure code and the expression used being "a Magistrate" an not "the Magistrate", it was clearly intended that an order of injunction can only be passed by the learned Magistrate drawing up the proceedings under section 133 of the code within the bounds of section 142 (1) of the Code. Anything short of that would be long off the mark. Mr. J. M. Banerjee appearing on behalf of the State submitted in his fairness that the point was not free from doubt and left room for consideration either way. Mr. Poddar contended that there was no cloud raised and the same, if any, can easily be lifted if the provisions of section 142 Criminal Procedure code are considered against the backdrop of section 133 of the Code onwards as incorporated in Chapter X of the code of Criminal Procedure. Mr. Poddar contended that there was no cloud raised and the same, if any, can easily be lifted if the provisions of section 142 Criminal Procedure code are considered against the backdrop of section 133 of the Code onwards as incorporated in Chapter X of the code of Criminal Procedure. In this context he also laid emphasis on the ground of expediency as otherwise a magistrate drawing up an order under section 133, Criminal Procedure Code and having mentioned some other magistrate in the conditional order itself before whom the cause could be shown, cannot continue to do duty ad infinitum, and if and when exigency arises in the shape of emergent situation, the learned transferee Magistrate or the Magistrate who was mentioned in the original conditional order would be helpless. The cardinal principle of interpretation of statute rules out redundancy. As was observed by Lord sumner in the case of (1) Quebec Railway, light, Heat and Power Co. Ltd. v. Vandry, reported in A. I. R. 1930 P. C. 181 at 186 that "effect must be given, if possible, to all the words used, for the legislature is deemed not to waste its words or to say anything in vain. "I respectfully agree with the same. It is pertinent now to consider the submission made in this context by the learned Amicus Curiae. Mr. Banerjee submitted that in order to understand the meaning of the words "a Magistrate" as used in section 142 (1) Criminal procedure Code it is necessary to make a reference to the other provisions of the statute preceding the same. In this context Mr. Banerjee referred to the provisions of section 133 (1) where in the expression used is "to appear before himself or some other Magistrate of the first or second class". Mr. Banerjee submitted that there is no vagueness and the required appearance may be made either before the learned magistrate drawing up the proceeding under section 133 or before "other magistrate" as mentioned therein. The same is the position so far as sections 134, 135 and 136 of the Code are concerned. The legislature in its wisdom has used the expression "to the magistrate by whom it was made" and therefore the said expression connotes and predicates that the Magistrate as referred to in the words of sections 134, 185, 136 and 138 Cr. The same is the position so far as sections 134, 135 and 136 of the Code are concerned. The legislature in its wisdom has used the expression "to the magistrate by whom it was made" and therefore the said expression connotes and predicates that the Magistrate as referred to in the words of sections 134, 185, 136 and 138 Cr. P. C. is "the Magistrate" drawing up the conditional order and not "any other Magistrate" to whom the case may be transferred. The material words in the aforesaid provisions cannot be overlooked. The proper way is to give effect to the plaint meaning conveyed by the words of the said section. The words used therein being "if a Magistrate making an order under section 133", it must mean that it is the Magistrate who passed the conditional order. Mr. Poddar submitted that this would give rise to untold difficulties and the words of a statute are not to be interpreted in a manner which would defeat the intention of the legislature. It is difficult to agree with the said submission because the alternative provision is significant and cannot be overlooked. In the case of a subsequent application, the other Magistrate as mentioned in the conditional order under section 133 (1) or the transferee Magistrate under section 192 of the said Code, is not powerless. To give effect to the intention of the legislature recourse may be had to the provisions of section 520 of the Code. On the principle of a harmonious construction of the statute, I accordingly hold that the expression "a Magistrate" within the bounds of section 142 (1) means the transferor Magistrate drawing up the conditional order and not any other Magistrate who may come by the case subsequently. After all is said and done, orders under section 133 Criminal Procedure Code are temporary orders, not vested with immorality in an otherwise mortal world. I accordingly agree with the interpretation given by the learned amicus Curiae to the provision of section 142 (1) of the Code as also the contention made in this behalf by Mr. Roy appearing in support of the Rule, the first contention raised by Mr. Roy accordingly succeeds. 4. THE second point raised by Mr. Roy also stands on a firm ground. Mr. Roy appearing in support of the Rule, the first contention raised by Mr. Roy accordingly succeeds. 4. THE second point raised by Mr. Roy also stands on a firm ground. Mr. Roy has contended that the order of injunction passed under section 142 (1)Criminal Procedure Code must not run off at a tangent from the original order passed under section 133 of the said code. A reference to the two orders would make it abundantly clear that the second one passed by way of an injunction is not the same as the order that was passed by way of conditional order on the 28th May, 1970. It is pertinent therefore to refer to the first order passed on the 28th May, 1970, namely, the conditional order, which runs as follows : - "I do hereby draw up a proceeding against the O. P. u/s. 133 Cr. P. C. and direct them to desist from carrying on the trade or regulate it so that no noise is caused to the discomfort of the residents of the locality due to running the machines and dropping iron plates on the road or to show cause before Sri k. C. Mallick, Magistrate 1st Class, why the order should not be enforced with or without necessary modifications by 20/6/70. Issue notice in form XVI of Schedule V accordingly." The order of injunction passed on the 10th June, 1970, runs as follows: - "I am satisfied from the above that there is chance of the adjoining houses being cracked and damaged at the hammering done by the O. Ps. in their factory. Immediate action u/s. 12 Cr. P. C. is as such warranted to prevent the imminent danger or injury. Issue injunction against the O. Ps. asking them to stop the functions of the factory forthwith at 236/1 Vivekananda road, Cal. and 57/6, Raja Dinendra street, Calcutta. Cause if any may be shown by the o. Ps. on the date fixed. Immediate action u/s. 12 Cr. P. C. is as such warranted to prevent the imminent danger or injury. Issue injunction against the O. Ps. asking them to stop the functions of the factory forthwith at 236/1 Vivekananda road, Cal. and 57/6, Raja Dinendra street, Calcutta. Cause if any may be shown by the o. Ps. on the date fixed. " One looks in vain to the latter order to find any provision for regulating the carrying on of the trade so that no noise is caused and instead there is a direction for stopping the functioning of the factory lock, stock and barrel and forthwith stopping the functioning of the factory cannot by any chance be akin to regulation thereof in a manner directed by the court drawing up proceedings under section 133 Criminal procedure Code. A reference in this context may be make to the case of (2) Panchanan Mallick and three others v. R. Chatterjee, reported in 53 C. W. N, 907 wherein Mr. Justice Sen observed that even passing a conditional order under section 133, the Magistrate limits himself to the checking of a particular nuisance, an order of injunction under section 142 must be restricted to the checking of that particular nuisance which has been prohibited by the order under section 133 and the Magistrate will be acting without jurisdiction if he goes beyond the scope of the nuisance. Having given my anxious consideration to the matter, I find that the learned magistrate has gone beyond his jurisdiction in passing the order of injunction which is not only clearly divergent from the conditional order passed by him on the 28th May, 1970 but is also dehors the statute. I respectively agree with the observations made for Mr. Justice Sen in the above mentioned case and I hold that in view of the said non-conformance, the resultant order of injunction passed by the learned Magistrate is clearly bad and repugnant and as such should be quashed. The second contention also of Mr. Roy accordingly succeeds. Before I part with the case, i must place on record my appreciation of the trouble taken by Mr. Banerjee in placing before the Court the pros and cons relating to the point raised, which is one of first impression. But for his assistance, it would have been difficult for this Court to go to the bottom of the case. 5. Banerjee in placing before the Court the pros and cons relating to the point raised, which is one of first impression. But for his assistance, it would have been difficult for this Court to go to the bottom of the case. 5. IN the result, I make the Rule absolute; set aside the impugned orders dated the 10th June, 1970, and 24th June, 1970, passed by Sri K. C. Mallick, Magistrate 1st Class, Sealdah, district 24-Parganas in case No. M. P. 409 of 1970; and I send back the m 105 of 1970 case to the court below for being disposed of in accordance with law and expeditiously and in the light of the observations made above, from the stage reached on the 28th May, 1970, by some other Magistrate to whom the case is to be assigned by the learned police Magistrate, Sealdah. The records are to go down as early as possible.