P. C. PATHAK, J. ( 1 ) - This order shall also govern the disposal of Misc. Criminal Case No 3123/1986 (Orient Paper Mills v. The State of Madhya Pradesh ). ( 2 ) THE revision is directed against an order dated 3. 4. 1986 passed by District Magistrate, Shahdol, whereby the applicants objections to the initiation of proceedings under section 131, Cr. P. C. were rejected. ( 3 ) MISC. Criminal Case No. 3123/1986 has been filed by the applicant to quash proceedings under section 133, Cr. P. C. The facts giving rise to both the petitions are that the applicant (hereinafter called Millt), a private limited company manufactures paper of various kinds at Amlai, in district Shahdol, under a licence granted by the Central Government. The Mill takes supply of water from river the Sone and discharges the trade effluents in that river. It is said that adequate arrangements have been made, in consultation with the National Environmental Engineering Research Institution, Nagpur (hereinafter in short NEERI), an undertaking of Government of India, for treatment of trade effluent at a cost of near about 1. 40 crore while the annual running cost of the plant is estimated at about Rs. 30 lacs. In consequence of these, the water discharged in the river is non-toxic and harmless, to flora and fauna both. ( 4 ) BY, order dated 3. 2. 1986, the District Magistrate served on the Mill a conditional order for removal of nuisance under section 133, Cr. P. C. alleging that the trade effluent discharged by it in the river toxic, injurious to health of the community and is deleterious to the cattle population of the villages on the banks of river the Sone, which constitutes public nuisance and until arrangements have been made to purify the effluents as to render the water fit for consumption by the human population, the Mill should desist from discharging toxic effluents into the river. If for any reason, the Mill cannot comply with the order, it should show cause as to why the order be not made absolute. ( 5 ) THE Mill filed a reply (doc. No 1), raising objections, inter alia that the proceedings under section 133, Cr. If for any reason, the Mill cannot comply with the order, it should show cause as to why the order be not made absolute. ( 5 ) THE Mill filed a reply (doc. No 1), raising objections, inter alia that the proceedings under section 133, Cr. P. C. are barred under the provisions of the Water Prevention and Control of Pollution) Act, 1974 (VI of 1974) (hereinafter in short the Water Act) since the subject of prevention, control, or abatement of water pollution is now entrusted to State Board who can, not only issue orders restraining pollution but also prosecute the defaulters in a criminal Court established under that Act. The water pollution which includes nuisance to the public by rendering the water harmful to the life and health of the public or of the animals can be inquired and the remedial measures taken by the State Board. Therefore section 133, Cr. P. C. , so far as it relates to water pollution, stands repealed by the Water Act. ( 6 ) THE District Magistrate by his order dated 3. 4. 1986 overruled the objections, which is challenged in criminal revision No. 210/1986. ( 7 ) MEANWHILE the M. P. Pradusha Niwaran Mandal (hereinafter in short the State Board) also filed an application (doc. No. 4 in M. Cr. C.) in the court of CJM, Shahdol, being criminal case No. 49/86 for issuance of order under section 33 or otherwise action under the Water Act. The Mill entered appearance in that case on 28. 7. 1986. The complaint is still pending. ( 8 ) THE submission of the Mill is that the Water Act is a special law while section 133, Cr. P. C. is a general law. Section 33 of the Water Act empowers the State Board to make an application to a court for restraining the person from causing any pollution. The Magistrate can also authorise the Board to remove the nuisance and to get the expenses reimbursed. The power under section 33 is much wider than under section 133, Cr. P. C. Therefore section 133, Cr. P. C. , so far as relates to water pollution is impliedly repealed by the Water Act. Reliance is placed on Tata Tea Ltd. v. State of Kerala1. The power under section 33 is much wider than under section 133, Cr. P. C. Therefore section 133, Cr. P. C. , so far as relates to water pollution is impliedly repealed by the Water Act. Reliance is placed on Tata Tea Ltd. v. State of Kerala1. It was also urged that the District Magistrate failed to record a finding as to the existence of public right under section 137 (1), Cr. P. C. , without which, the District Magistrate has no jurisdiction to proceed under section 133, Cr. P. C. The requirement of recording a finding under section 137 (1) is mandatory and cannot be ignored as merely irregularity. Reliance is placed on Ramakrishna v. K. Kusali Kutti2. 1. 1984 KLT 645 . 2. 1985 Cr. L. J. 630, ( 9 ) IN order to appreciate the rival contentions of the parties, it is necessary to examine the scheme of the Water Act. The preamble says that the Act is to provide for the prevention and control of water pollution and the maintaining or restoring of wholesomeness of water for the establishment and with a view to carrying out the purpose aforesaid, statutory Boards are established. Section 2 defines the Board as the Central Board or State Board. State Board means a State Board for prevention and control of water pollution constituted under section 4. Pollutiont is defined under section 2 (e) as under: Pollution means such contamination of water or such alteration of the physical, chemical or biological properties of water or such discharge of any sewage or trade effluent or of any water (whether directly or indirectly) as may, or is likely to create a nuisance or render such water harmful or injurious to public health or safety, or to domestic, commercial, industrial, agricultural or other legitimate uses or to the life and health of animals or plants or of acquatic organisms; Stremt includes a river under section 2 (j) (i ). ( 10 ) CHAPTER II from sections 3 to 12 provides for the constitution of Central and State Boards. Chapter III deals with the constitution of Joint Boards; whereas Chapter IV prescribes the powers and functions of the Boards. Section 17 enumerates the functions of State Board. ( 10 ) CHAPTER II from sections 3 to 12 provides for the constitution of Central and State Boards. Chapter III deals with the constitution of Joint Boards; whereas Chapter IV prescribes the powers and functions of the Boards. Section 17 enumerates the functions of State Board. Among others, the function under Clause (f) is: to inspect sewage or trade effluents, works and plants for the treatment of sewage and trade effluents and to review plans, specifications or other data relating to plants set up for the treatment of water, works for the purification thereof and the system for the disposal of sewage or trade effluents or in connection with the grant if any consent as required by this Act. And under Clause 1 (i) and (ii) are: to make, vary or revoke any order (i) for the prevention, control or abatement or discharge of waste into streams or wells; (ii) requiring any person concerned to construct new systems for the disposal of sewage and trade effluents or to modify after or extend any such existing system or to adopt such remedial measures as are necessary to prevent, control or abate water pollution; Provisions are also made for establishment of laboratories to enable the Boards to perform their functions properly and efficiently by taking samples of any sewage or trade effluent under section 21 and getting them analysed under section 22 for determining the extent of pollution. ( 11 ) CHAPTER V containing sections 19 to 33 deals with the measures for the prevention and control of pollution. Section 24 prohibits the disposal of polluting matters in stream except within the prescribed standard with the consent of the State Board. Section 25 prohibits the opening of the new outlets and discharges into a stream without the previous consent of the State Board. Section 26 makes provision as regards the discharge of effluents which existed on the date of enforcement of the Water Act. Section 27 enables the State Board to refuse or withdraw its consent and also to review conditions imposed while granting consent. Section 28 provides for an appeal against order of the State Bard under section 25, 26 or 27. Sub-section (5) of section 28 limits the scope of such an appeal only to the reasonableness of the conditions imposed by the State Board. Section 28 provides for an appeal against order of the State Bard under section 25, 26 or 27. Sub-section (5) of section 28 limits the scope of such an appeal only to the reasonableness of the conditions imposed by the State Board. Section 29 confers powers on the State Government to call for record of any case for the purpose of satisfying itself as to the legality of any order made by the State Board under section 25, 26 or 27. Section 30 empowers the State Board to carry out certain work and to recover expenses as arrears of land revenue. Section 33 empowers the Board to make an application to a courtt for an order restraining any person likely to pollute any stream or well. The court is empowered to direct the person concerned to desist from taking any action likely to cause pollution and if he has caused the pollution of the water, to remove such matter from the stream or well. Court may authorise the Board to enforce compliance of such directions in which case the Board shall be entitled to recover all expenses. ( 12 ) CHAPTER VI provides for Fund Accounts and Audit. Chapter VII provides for penalties for failure to comply with the directions under sections 20 (2) and (3), 32 (1) (c) and 33 (2 ). Section 42 prescribes penalties for certain other Acts. Sections 43 and 44 provide for penalties for contravention of provisions of sections 24, 25 and 26. Section 45 provides for enhanced penalty for repetition of the offence after previous conviction. Sections 47 and 48 prescribe persons to be prosecuted when the offences are committed by a Company or by the department of a Government. Section 49 provides that no courts shall take cognizance of any offence under the Act except on a complaint made by, or with the previous sanction of the State Board. ( 13 ) CHAPTER VIII, the last chapter, contains miscellaneous provisions, viz, establishment of laboratories, appointment of Analyst etc. Section 58 bars the jurisdiction of civil court to entertain any suit in respect of any matter which an appellate authority constituted under the Act is empowered to determine; and to grant injunction in respect of any action taken or to be taken under the Act. Section 60 lays down that the provisions of the Water Act have overriding effect over other Acts. Section 60 lays down that the provisions of the Water Act have overriding effect over other Acts. ( 14 ) FROM the foregoing salient features, it is clear that the Parliament passed the special Act for prevention and control of water pollution and the maintenance or the restoration of wholesomeness of water. The problem of water pollution arising from the discharges of sewage and trade effluent in a stream on account of rapid industrialization has assumed alarming situation, seriously affecting public health. Availability of pure water is the basic need for the existence of life. The State has to ensure and to see that the very existence of life is not jeopardised. Industrial development has to be for the community and not to its exclusion. All the same, industrialisation is necessary outcome of modernisation and growth of civilization. It, therefore, became necessary to ensure that the ill effects of industrialisation are minimised so as to be compatible with the health and the essential needs of the community, co-existence of industry with the community is the object to be achieved. The Water Act however does not impose a total ban on discharge of effluents but seeks to regulate it by allowing effluents to be discharged within the prescribed standard. ( 15 ) IT is now essential to examine the provisions of section 133, Cr. P. C. also. Sections 133 to 142, Cr. P. C. provide speedy any summary remedy for removal of public nuisance in case of emergency and imminent danger to the public interest or health. The Code does not define public nuisance. The meaning can be borrowed from section 268 of the Indian Penal Code which lays down that a person is guilty of public nuisance, who does any act or is guilty of an illegal omission which causes any common injury, danger, or annoyance to the public or to the people in general who dwell or occupy property in the vicinity or which must necessarily cause injury, obstruction, danger, or annoyance to persons who may have occasion to use any public right. It has to be borne in mind that section 133 applies only to an actual existing nuisance and not to potential nuisance i. e. , what may become a nuisance in future as laid down in Shoukat Husain and another v. Shivdayal3. It has to be borne in mind that section 133 applies only to an actual existing nuisance and not to potential nuisance i. e. , what may become a nuisance in future as laid down in Shoukat Husain and another v. Shivdayal3. ( 16 ) THE conditional order against the Mill is in respect of nuisance contemplated by Clause (a) of sub-section (1) of section 133, Cr. P. C. , namely the discharge of effluents in the river. The Mill was directed to desist from discharging the same. The applicants objection that the proceedings under sec. 133 are barred by the provisions of the Water Act as aforesaid was overruled by the learned District Magistrate. The same arguments were repeated before this Court. ( 17 ) BEFORE examining the question of repeal, it is essential to bear in mind the rules of interpretation governing implied repeal of an earlier enactment. The doctrine of implied repeal is based on the theory that the legislature, which is presumed to know the existing law, did not intend to create any confusion by retaining conflicting provisions and, therefore, when the court applies the doctrine, it does no more than give effect to the intention of the legislature by examining the scope and the object of the two enactments and by a comparison of their provisions. See Municipal Corporation, Palai v. T. J. Joseph4. A repeal by implication will not be inferred merely from something contained in the preamble of the Act. Maganti v. State of Andhra Pradesh5. The continuance of existing legislation, in the absence of an express provision of repeal, being presumed, the burden to show that there has been a repeal by implication lies on the party asserting the same. The presumption 3. AIR 1958 MP 350 . 4. AIR 1963 SC 1561 . 5. AIR 1970 SC 403 . is, however, rebutted and a repeal is inferred by necessary implication, when the provisions of later Act are so inconsistent with or repugnant to the provisions of earlier Act that the two cannot stand together. The presumption 3. AIR 1958 MP 350 . 4. AIR 1963 SC 1561 . 5. AIR 1970 SC 403 . is, however, rebutted and a repeal is inferred by necessary implication, when the provisions of later Act are so inconsistent with or repugnant to the provisions of earlier Act that the two cannot stand together. The Supreme Court indicated in M. C. Palais case (supra), certain tests to be applied for solving a question of implied repeal, namely (i) whether there is a direct conflict between the two provisions; (ii) whether the legislature intended to lay down an exhaustive Code in respect of the subject matter replacing the earlier law; (iii) where the two laws occupy the same field. The matter in each case is one of the construction and comparison of two Acts. Lastly, a repeal by implication is just as effective as by express words. ( 18 ) THE pollution of water sought to be regulated by the Water Act is such contamination of water or such alteration of properties of water or such discharge of sewage or trade effluent into water as may or is likely to create a nuisance or render such water harmful or injurious to public health or safety to the life and health of animals or plants or of acquatic organisms. Section 133 (1) (a) of the Criminal Procedure Code also speaks of nuisance in river or channel lawfully used by the public. It was, therefore, argued that the subject matter of section 133 (1) (a) is also covered by Water Act which provides remedies for removal of nuisance. Attention was focused to section 33 which empowers the Board to make an application to a court for restraining apprehended pollution of water in streams or wells. The relief which can be obtained by initiation of proceedings under section 133 of the Code, can also be achieved by appropriate application before a court. It is urged that if the proceedings are launched simultaneously under both the Acts, it will result in serious inconvenience to the person proceeded against which must not have been intended by the legislature. ( 19 ) THERE is no merit in the submission. A reading of section 133 shows that it deals with existing nuisance while section 33 contemplates apprehended nuisance. Thus the two provisions do not overlap each other. They deal with two different situations. ( 19 ) THERE is no merit in the submission. A reading of section 133 shows that it deals with existing nuisance while section 33 contemplates apprehended nuisance. Thus the two provisions do not overlap each other. They deal with two different situations. This apart, no application has been made by the Board under section 33 for grant of injunction and the matter as at present is purely academic. ( 20 ) RELIANCE was placed on a Single Bench decision of Kerala High Court in Tara Tea Ltd. s case (supra) (Doc. No. 6 ). This decision supports the contention of the applicant on all fours. In this case, the Secretary of Public Interest Protection Association, Munnar filed an application under section 133, Cr. P. C, against Tata Tea Ltd. complaining that the wastages of the instant Tea Division are being washed out into the river Lallthanni and thereby polluting the water which is used as drinking water by the people of the locality. There are acidic contents in the wastages which are harmful to the human health. The learned Sub-Divisional Magistrate passed a conditional order under section 133 (1) (f) of the Code requiring Tea Company to desist from discharging the effluent from the factory into the river and to make suitable arrangement so as to prevent the same from passing into the river. The Tea Company filed objection contending inter alia that the factory was being run since 1964 and has obtained sanction under the Water Act in the matter of discharge of effluent and therefore the Magistrate has no jurisdiction to deal with the matter. It appears that the Tea Company, without awaiting any order of the Magistrate on the objections, filed a petition under section 482, Cr. P. C. to quash the proceedings of the court of Sub-Divisional Magistrate. It appears that the Tea Company, without awaiting any order of the Magistrate on the objections, filed a petition under section 482, Cr. P. C. to quash the proceedings of the court of Sub-Divisional Magistrate. The learned Single Judge relied on Northern India Calt (Pvt.) Ltd. and another v. State of Punjab6, and on analysis and comparison of the two Acts held that all the remedies which could be provided by an Executive Magistrate under section 133 could certainly be provided by the authorities contemplated under the Pollution Act; it would not make any difference, if a citizen is unable to approach directly to a Magistrate under the Water Act since it is open to the citizen concerned to approach the State Board with his grievances and it will be open to the State Board to take steps under the Water Act including an application before a Judicial Magistrate. It was also held that the Water Act is special statute while section 133 is of general nature; in regard to pollution of water by an effluent. Water Act is a complete Code in itself and if the two provisions co-exist, that would certainly be causing inconvenience, if not conflict of jurisdiction. In this view of the matter, the learned single Judge held that the provisions of Water Act, by implication, repeal the section 133 of the Code in so far as it relates to prevention and control of water pollution and therefore the Executive Magistrate 6. AIR 1967 SC 1581 . had no jurisdiction to deal with it under the provisions of section 133 of the Code. Accordingly the proceedings before him were quashed. ( 21 ). With utmost respect to the learned single Judge, I am unable to endorse his reasoning and the conclusions reached by him. The only reason for holding repeal of section 133 by implication in relation to water effluent is the inconvenience likely to be caused. ( 22 ) THERE is a presumption against a repeal by implication, which is based on the theory that the legislature while enacting law has complete knowledge of the laws on the same subject matter, and when it does not provide a repealing provision, it gives out an intention not to repeal an existing legislation. Municipal Corporation, Palai v. T. J. Joseph (supra ). Municipal Corporation, Palai v. T. J. Joseph (supra ). It is a maxim of law that implied repeals are not to be favoured and where two statutes are entirely affirmative and identical, no question of inconsistency could arise. State of M. P. v. Ramesh Nai7. ( 23 ). There are series of decisions in which the court declined to infer repeals by implication. In State v. Rajkumar8, it was held that the Prevention of Corruption Act, 1947 does not repeal by implication section 409 of the Indian Penal Code and was enacted as a supplementary measure to the other and the two provisions can co-exist side by side even though the one may, to some extent, overlap the other. In Northern India Calts case (supra) relied on by the Kerala High Court, it was urged that the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, XXXI of 1959 substituted the remedy of eviction by the Government as a landlord under the Civil Procedure Code. It was urged that the Government could only resort to the remedy under the new Act and not by way of suit for eviction under the normal law which was done away by the said Act. The Supreme Court held that the impugned Act did not negative the right of the Government as landlord to file suit for eviction under the ordinary law nor the co-existence of two remedies would cause such inconvenience or absurdity that the court would be compelled to infer that the enactment of the Act resulted in implied deprivation of the Governments right to sue in the ordinary courts 7. 1975 MPLJ 1 (FB ). 8. AIR 1956 Pepsu 1. ( 24 ) A reference to section 5 of the Code of Criminal Procedure be made which runs as under: 5. Saving - Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction of power conferred, or any special form of procedure prescribed, by any other law for the time being in force. I may also refer to section 60 of the Water Act which runs as under: T1section 60 - The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act. I may also refer to section 60 of the Water Act which runs as under: T1section 60 - The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any enactment other than this Act. If one bears in mind the aforesaid provisions, the intention of the legislature becomes clear and no inference of repeal by implication of section 133 can be drawn. Reference may also be made to Krishna Mohan Bamere and another v. A. K. Guha9, which held that the existence of an alternative remedy does not deprive the Magistrate of jurisdiction under section 133. ( 25 ) LEARNED counsel for the applicant relied on The National News Print and Paper Mills Ltd. Nepanagar v. Nagar Palika Parishad, Burhanpur10, Civil Revision No. 9/78, decided on 5. 5. 1978 by Shri J. S. Verma J. as he then was. In this case the Municipal Council filed a suit for perpetual injunction restraining the NEPA Mills from causing public nuisance by discharging the trade effluent in the river Tapti. The plaintiffs application for grant of temporary injunction was allowed by the trial Court. In appeal, the order was set aside on condition that the NEPA Mills paid Rs. 30000/- yearly to the Municipal Council till the disposal of the suit. The NEPA Mills raised a plea that the jurisdiction of the Civil Court to take cognizance of the suit was barred by section 58 of the Water Act. The objection was overruled. The order was challenged in revision before this Court. This Court held that the suit as framed, was barred by second part of section 58. As a result of grant of the injunction claimed in the suit, the NEPA Mills would be restrained from 9. AIR 1920 Cal 550. 10. Civil Revision Mo. 9 of 1978, decided on 5. 5. 1978 (M. P ). discharging its trade effluent in the river, not withstanding the consent granted to it by the State Board to discharge the same in the river on the conditions imposed. Therefore it would result in restraining an act which is being done in pursuance of power conferred by or under the Water Act. 5. 1978 (M. P ). discharging its trade effluent in the river, not withstanding the consent granted to it by the State Board to discharge the same in the river on the conditions imposed. Therefore it would result in restraining an act which is being done in pursuance of power conferred by or under the Water Act. The court however refrained from deciding the question whether the suit filed for injunction to restrain discharge of trade effluent in breach of, or contrary to, the terms of the consent of the State Board, would also be barred by virtue of section 58 of the Act. This case is dearly distinguishable since the decision was rendered on account of the bar of jurisdiction specifically provided under section 58. ( 26 ) THE learned counsel for the applicant also relied on Babu Lal Bharati v. Aditya Birla and others11, Criminal Revision No. 69/82, decided on 4. 10. 1985 by Shri K. L. Shrivastava J. at Indore Bench. In that case Babu Lal filed a complaint under sections 277, 278 and 290 of the Indian Penal Code against the persons In-charge of Management of Gwalior Rayan Silk Manufacturing and Weaving Company Ltd. , Nagda on the allegations that the company discharged waste water into a stream which is injurious to the health and well being of the inhabitants of the area. The Coal ashes discharged by it in the adjoining area polluted the atmosphere so as to make it injurious to human life. The complaint was registered against some of the accused persons and not against the rest. The complainant therefore filed revision for a direction to issue process against the rest also. A preliminary objection was raised before the High Court that the jurisdiction of the trial Court to take cognizance of the offence was barred by the provisions of the Water Act and the Air (Prevention and Control of Pollution) Act, 1981 (for short the Air Act ). The learned Judge upheld the objection and held that irrespective of the question whether or not an act complained of also constitutes an offence under the Indian Penal Code, it was not open to the Magistrate to take cognizance without the written sanction of the State Board. This decision also does not help the applicant. It was not decided that the Special Act repealed the sections of the Indian Penal Code by implication. This decision also does not help the applicant. It was not decided that the Special Act repealed the sections of the Indian Penal Code by implication. All that it held was that in the absence of written sanction of the State Board, 11. Criminal Revision No. 69 of 1982, decided on 4. 10. 1985 (MP) cognizance of the offences could not be taken. This decision is distinguishable on its own facts. ( 27 ) IT was also argued that in the absence of any order under section 137, the Magistrate had no jurisdiction to proceed with the enquiry under section 138, Cr. P. C. The material placed on record do not substantiate the applicants arguments, it cannot be ascertained from the record before me, whether the District Magistrate passed any order under section 137 or not. Merely because he has started recording the evidence of some of the witnesses, one cannot jump to the conclusion that the provisions of 5. 137 were bye passed by him. The Kerala High Court in Ramkrishan's case (supra) held that there is fundamental difference between enquiries under sections 137 and 138, Cr. P. C. Without recording a finding on the question as to the existence of public rights under section 137 (1), it is not proper and legal to mix up the enquiries under sections 137 (1) and 138, Cr. P. C. The learned District Magistrate, I hope, shall bear in mind the aforesaid legal position and shall act accordingly. ( 28 ) IN view of the foregoing discussion, the petitions fail and are accordingly dismissed. For the reasons stated in order passed by me today in Criminal Revision No. 210/1986 (Orient Paper Mills v. State of M. P.), fails and is accordingly dismissed. .