Order.- I am afraid the proceedings in this case do not disclose that the learned (Executive) First Class Magistrate acted with a due sense of responsibility or with due regard to the provisions of the law he professed to administer. The petition on which, acting under section 133 of the Criminal Procedure Code, he directed the two counter-petitioners in the case to cut and remove certain trees standing on their property was presented to him on 14th May, 1960. He forwarded the petition to the Sub Inspector of Police, Cherpu for necessary action and report, and, on receipt of the Sub Inspector’s report, he issued the following order under section 133 (1) of the Code. “Whereas it has been reported to me by the Sub Inspector of Police, Cherpu that certain trees are standing in the northern side of the C. Ps. compound which are very adjacent to the petitioner’s property and also over-hanging to the petitioner’s building and whereas it has every likelihood of breaking and falling on the said buildings and thereby causing danger to the life and property of the petitioner and his family, I, Zacharia Mathew, Executive 1st Glass Magistrate, Trichur do hereby require the C.Ps. to cut and remove those trees which are danger to the petitioner before 1st June, 1960 or to appear before me in my Court on the 1st June, 1960 at 10 A.M. and to show cause why this order should not be enforced.” On 1st June, 1960 the learned Magistrate did not sit, but the counter-petitioners entered appearance through counsel and on 4th June, 1960, they filed written objections. Meanwhile, on 3rd June, 1960, a date to which the case was not posted (in fact there was no order of adjournment made at all on 1st June, 1960), the Magistrate had decided on a local inspection and he made the following order: “Local inspection at 2 p.m. on 3rd Jane, 1950.” an order which he carried out without any notice to the parties and without having recorded any evidence in the case, contrary to the provisions of section 539-B of the Code. Of the inspection he recorded the following memorandum: “Local inspection. Trees standing dangerous. Two Uluneengi near the latrine; Malli. Of the inspection he recorded the following memorandum: “Local inspection. Trees standing dangerous. Two Uluneengi near the latrine; Malli. All branches spreading over the house i.e., those of a cashew tree and jack tree Payyani Malli 2 Week’s time given.” Then, without giving any manner of hearing to the counter petitioners, he proceeded to pass the following order on 8th June, 1960: “From the local inspection made by me, it is found that the following trees are standing in dangerous position to the buildings. Hence I hereby order that the following trees should be cut and removed before the 22nd June, 1960. (1) Two ‘Uluneengi’ trees near the latrine. (2) One Malli (Malli) tree near the latrine. (3) All branches spreading on the house i.e., those of a cashew tree and jack tree. (4) One Payyani (Malli) and one Malli tree standing near the house”. In respect of this order the learned Sessions Judge has made this reference under section 438 of the Code. It is obvious that the order cannot stand. In the first place the preliminary order under section 133 (1) is vague in that it does not specify the trees which the counter petitioners were to remove, but only requires them “to cut and remove those trees which are danger to the petitioner.” Next, the final order was based solely on an inspection made by the Magistrate without notice to the parties. It was made without giving the counter-petitioners an opportunity of showing cause against the preliminary order, or to make an application to appoint a jury to try whether the same was reasonable and proper, as they were entitled to do under sections 133 and 135 of the Code, and without recording any evidence as required by section 137 or, in the alternative, appointing a jury as required by section 138. It seems to me that the Magistrate did not appreciate that he was exercising a judicial function and that he has acted in this matter much in the same way as he would deal with a mere administrative matter-not that I am, for a moment, suggesting that an administrative matter should be decided without reference to the law or the rules governing it or without observing the principles of natural justice. The order under section 133 (1) of the Code is obviously in the handwriting of a clerk. The order under section 133 (1) of the Code is obviously in the handwriting of a clerk. It has been merely initialled by the Magistrate and, having regard to its language, and the elementary errors of spelling and grammar with which it abounds, it is perhaps fair to assume that the Magistrate signed it without reading it. Next, I notice on the reverse of the memorandum of inspection the injunction, “Please speak”. This was not directed to the parties and, obviously the Magistrate thought it necessary to consult somebody, probably his clerk, before deciding what he should do. The final order which refers to no provision of law is again in the handwriting of the clerk, but it bears some evidence of having been perused by the Magistrate, for, I find that what was originally written as the opening sentence was, “From the local inspection made by me it is found that the alleged trees are standing in dangerous position to the buildings”, and that the Magistrate has substituted the word, “following” for “alleged”. But, otherwise, it bears no indication of being a judicial order which it could scarcely have been having regard to the fact that the learned Magistrate had completely chosen to ignore the appearance put in by the counter-petitioners and the objections stated by them. That the Magistrate treated this as a mere administrative matter is also apparent from the circumstance that, while the final order bears the legend, “Given under my hand and seal of the Court this day the 7th June, 1960” the Magistrate who, to this as to the preliminary order has only affixed his initials has dated as 8/6; and this is the date that appears in the notes paper as the date on which final orders were passed by him. It is clear that both the preliminary and the final orders passed in the case must be quashed. But before doing so I might refer to the argument advanced by Mr. K. V. Kuriakose (who very kindly acted as amicus curiae, neither party having appeared, and whose able assistance I hereby acknowledge) that a matter like this can never come within the scope of section 133 of the Code. If I have understood him aright-and I might observe that the learned Sessions Judge seems to be of the same view as Mr. If I have understood him aright-and I might observe that the learned Sessions Judge seems to be of the same view as Mr. Kuriakose-because Chapter X of the Code is headed, “Public Nuisances”, a tree can be ordered to be removed under section 133 only if it is a public nuisance; and for appreciating what exactly is a public nuisance, we must turn to section 268 of the Indian Penal Code which defines the offence of public nuisance. If we do that, we find that, for a public nuisance there must be common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, and it is not sufficient that there is danger to a particular person or persons living in the neighbourhood. With regard to this argument I wish to make two observations. In the first place the clause in section 133(1) providing for a matter like the present is quite clear and unambiguous. It reads thus: “that any building, tent or structure, or any tree is in such a condition that it is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by, and that in consequence the removal, repair, or support of such building, tent or structure, or the removal or support of such tree, is necessary”. It is clear from the language of this clause that no danger to the general public is necessary, that the tree in question need not be in such a position as to fall in any public place, and that it is quite enough that it is likely to fall, wheresoever the fall might be, so long as the fall is capable of causing injury to persons living or carrying on business in the neighbourhood. The requirement is satisfied even if the danger is confined to the members of a single household, even, I should think, to a sole occupant. That being so, there is no need to go to the heading of the chapter to ascertain or limit the meaning of the clause when the language of the clause itself is so clear. The requirement is satisfied even if the danger is confined to the members of a single household, even, I should think, to a sole occupant. That being so, there is no need to go to the heading of the chapter to ascertain or limit the meaning of the clause when the language of the clause itself is so clear. My second observation is that there is no warrant for going to the Indian Penal Code for ascertaining the meaning of the term, public nuisance, as used in the heading to Chapter X of the Criminal Procedure Code. That term is not defined by the definition section, section 4(1) of the Criminal Procedure Code, and even if it is to be regarded as defined by section 4(2) by reference to the meaning attributed by the Indian Penal Code, the opening words of section 4, embodying the general principle of interpretation with regard to all general definitions, shows that this general definition is to yield if a different intention appears from the subject or context. And, from the subject and context of Chapter X, it is clear that the term, public nuisance, is used therein to cover the several kinds of nuisance described in section 133, in other words, that a tree which is likely to fall (albeit on private property) and thereby cause injury to persons living and carrying on business in the neighbourhood, is a public nuisance. It is true that some commentaries lend support to the argument, put forward by Mr. Kuriakose. But, in so far as they purport to do so on the authority of decided cases I have ascertained (except in the case of Shukat Nussain v. Sheodayal Saksaine1, a report which is not available here) that they are based on observations made in cases falling under other clauses of section 133(1), clauses which themselves specify that the nuisance should relate to the public or to a public place. The view I am taking is the view that was taken in Achelchand v. Suraj Raj2, and State v. Kochu3, the latter being a ruling of a Division Bench of this Court is indeed binding on me. I accept this reference and set aside both the preliminary and the final order made by the learned Magistrate. This does not mean that the Magistrate cannot take fresh action on the information before him. I accept this reference and set aside both the preliminary and the final order made by the learned Magistrate. This does not mean that the Magistrate cannot take fresh action on the information before him. But before doing so, he should familiarise himself with the relevant provisions of the Code and appreciate that he is to act accordingly and in the exercise of his own judgment. M.C.M. ----- Reference accepted.