Section 139 ipc

Description of IPC Section 139

According to section 139 of Indian penal code, No person subject to the Army Act, the Army
Act, 1950 (46 of 1950), the Naval Discipline Act, the Indian Navy (Discipline) Act, 1934 (34 of
1934), the Air Force Act or the Air Force Act, 1950 (45 of 1950), is subject to punishment
under this Code for any of the offences defined in this Chapter.

No person subject to 1[the Army Act, 2[the Army Act, 1950 (46 of 1950)], the
Naval Discipline Act, 3[4*** 5[the Indian Navy (Discipline) Act, 1934 (34 of
1934)], 6[the Air Force Act or 7[the Air Force Act, 1950 (45 of 1950)]]], is subject
to punishment under this Code Code for any of the offences defined in this
Chapter.
___________________________________
1. Subs. by Act 10 of 1927, s. 2 and the First Sch., for “any Articles of War for
the Army of Navy of the Queen, or for any part of such Army or Navy”.
2. Subs. by Act 3 of 1951, s. 3 and the Sch., for “the Indian Army Act, 1911”.
3. Ins. by Act 35 of 1934, s. 2 and the Sch.
4. The words “or that Act as modified by” omitted by the A. O. 1950.
5. Now see the Navy Act, 1957 (62 of 1957).
6. Subs. by Act 14 of 1932, s. 130 and Sch., for “or the Air Force Act”.
7. Subs. by Act 3 of 1951, s. 3 and the Sch., for “the Indian Air Force Act,
1932”.

Indian Penal Code (IPC) S. 139. Persons subject to certain Acts.

139. Persons subject to certain Acts.—No person subject to [i][the Army Act, [ii]
[the Army Act, 1950 (46 of 1950)], the Naval Discipline Act, [iii][[iv][* * *] the
Indian Navy (Discipline) Act, 1934 (34 of 1934)], [v][the Air Force Act or [vi][the Air
Force Act, 1950 (45 of 1950)]], is subject to punishment under this Code for any of
the offences defined in this Chapter.
Indian Penal Code (IPC) – Index of All Sections
[i] Substituted by Act 10 of 1927, S. 2 and Sch. I, for “any Articles of War for the
Army or Navy of the Queen, or for any part of such Army or Navy”.
[ii] Substituted by Act 3 of 1951 for “the Indian Army Act, 1911”.
[iii] Inserted by Act 35 of 1934, S. 2 and Sch.
[iv] The words “or that Act as modified by” were rep. by the A.O. 1950.
[v] Substituted by Act 14 of 1932, S. 130 and Sch., for “or the Air Force Act”.
[vi] Substituted by Act 3 of 1951 for “the Indian Air Force Act, 1932”.

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information, please consult the official sources to get the most authentic and
updated version.
Previous articleIndian Penal Code (IPC) Section 138-A. Application of foregoing sections
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Calcutta High Court

Mir Ali Newaj vs The State on 28 June, 1955
Equivalent citations: AIR 1955 Cal 579
Author: D Mookerjee
Bench: D Mookerjee

ORDER Debabrata Mookerjee, J.

1. These are two petitions for revision of two orders made by a Magistrate, Erst class,
Kandi, whereby ho made absolute under Section 139 Criminal P.G. two conditional
orders requiring the petitioners, Mir Ali Newaj and Choudhury Golam Martuza, in Cri.
Rev. Cases Nos. 260 of 1955 and 342 of 1955, respectively, to desist from carrying ort
the trade in hide and to remove their godowns at Salar, on the ground that the continuance
of the business was injurious to public health and physical comfort of the community.

2. The petitioners then applied to the Sessions Judge of Murshidabad for a reference to
this Court under Section 438, Cr. P. C., but the learned Judge by an order dated 17-1-
1955 disposed of the two applications in the two cases by one order. In the result the
learned Judge declined to interfere, whereafter the petitioners applied to this Court and
obtained these two Rules which have been heard together and are disposed of by one
order.

3. The facts alleged in the two cases are practically the same. On receipt of a complaint
from some of the villagers of Salar the learned Sub-divisional Magistrate of Kandi took
action under Section 133, Criminal P. C. against the two petitioners, The allegations were
that the petitioners had their hide godowns at Salar which were close to human habitation
where they stored raw hides etc. in huge quantities which produced noxious smell
affecting the health of the neighbouring people and the passers by.
The allegation further was that the petitioners had been granted licences to carry on the
business in hides beyond human habitation, but in infringement of the licences they
carried on the business and stored hide in the godowns, which they were required to
remove.

4. It appears that these petitioners were convicted under Section 278, Penal Code upon
the charge of making the atmosphere of the place noxious to the health of the persons in
the neighborhood or passing along the public way, but their convictions and sentences
were set aside on appeal.

5. On 3-6-1953 orders were passed by the Sub-divisional Magistrate requiring the

petitioners to desist from carrying on the trade and from maintaining the godowns and
further requiring them to remove the hides etc., away from the neighbourhood of the
public road or human habitation. The petitioners appeared in obedience to the notices.
issued and although they admitted that they carried on the trade and maintained the
godowns, they denied that they did so at a public place or the trade amounted to at public
nuisance.

On 19-8-1953 these petitioners applied before the Magistrate for the appointment of a
Jury and accordingly a Jury of five was formed to try the question as to whether the
conditional order made by the learned Magistrate referred to above was reasonable and
proper.

6. The Jury thereafter returned their verdicts in the two cases but they were divided in the
opinions they delivered. The opinion of the majority of the jurors was that the trade might
be allowed to continue provided certain minor structural alterations were made in the
godowns. The learned Magistrate took this majority view as finding by the Jury that the
conditional' orders passed by him were reasonable and proper, and in that view made the
orders absolute under Section 139(1), Criminal P. C. It is these orders which are now
being challenged before me.

7. Mr. Dutt, appearing in support of the Rule in Cri. Revn. Case No. 260 of 1955, has
argued that the order absolute made by the learned Magistrate under Section 139 of the
Code has been made in infringement of the terms of that section with the result that that
order cannot be held to have been validly made. Mr. Ali, appearing on behalf of the
petitioner in Cri. Revn. Case. No. 342 of 1955, has adopted Mr. Dutt's argument.

8. The question therefore that falls to be determined in these two revision petitions is
whether in view of the provisions of the Code relating to public nuisance, the orders made
by the learned Sub-divisional Magistrate of Kandi in these two cases were made in
accordance with law. This would require examination of the relevant provisions
contained in Chapter X of the Code.

9. Section 133 (1) provides that if a Magistrate mentioned in the section, on receipt of a

police report or other information, considers that the conduct of any trade or occupation
or of keeping of any goods or merchandies is injurious to the health or physical comfort
of the community and that, in consequence, such trade or occupation should be prohibited
or regulated or such goods or merchandise should be removed, such Magistrate may
make a conditional order requiring the persons causing the nuisance or carrying on such
trade or occupation or keeping such goods or merchandise to remove the nuisance or to
desist from carrying on or to remove or regulate in such a manner as may be directed,
such trade or occupation within a time to be fixed in the under.

If the person, so directed, objects "to comply with the order then he has to appear before
the Magistrate who issued the conditional order or some other Magistrate named in the
order and move to have the order set aside or modified in accordance with the manner
indicated in the subsequent sections of the Chapter.

10. Section 135 requires compliance with the under in the manner specified or gives the
party to whom the order has been addressed the right to show cause against the same or to
apply to the Magistrate for the appointment of a Jury to try whether the order so made by
the Magistrate is reasonable and proper,

11. Section 138 provides that the Magistrate, on receipt of an application under Section

135 for the appointment of a Jury, shall forthwith appoint a Jury of uneven number of
persons not less than five. The constitution and function of the Jury are regulated by the
provisions contained in the section, which says that the Foreman, and the members of the
Jury will attend at such time and place as the Magistrate might think fit and the latter will
fix a date within which the Jury are to return a verdict. The time so fixed may be enlarged
for good cause shown.

12. Then follows Section 139 which reads thus: (1) If the Jury or the majority of the
jurors and that the order of the Magistrate is reasonable and proper as originally made or
subject to a modification which the Magistrate accepts, the Magistrate shall make the
order absolute subject to such modification (if any). (2): In other cases no further
proceedings shall be taken under this Chapter.

13. It is thus dear from the provisions contained in Section 139, which I have just read,
that the conditional order made by the Magistrate can be made absolute under the section
only when the Jury or a majority of the jurors find that the order of the Magistrate, as
originally made, was reasonable and proper. The sub-section empowers the Jury to
suggest modifications and they become effective only when the Magistrate approves of
them.

The terms of Sub-section (1), therefore, make the position clear that the Jury is required
to pronounce upon the reasonableness and propriety of the order originally made by the
Magistrate under Section 133 of the Code. The order such at it is, is to be considered by
the Jury and Clause (b) of Section 135 makes the position further clear that the
appointment of a Jury is only for the purpose of enabling them to try the question whether
or not the order, made by the Magistrate is a reasonable and proper order.

Thus there can be no doubt 'whatever that the only matter which could legitimately
occupy the attention of the Jury is the question of reasonable ness or the propriety of the
order of the Magistrate.
If the Jury find that the order as made by the Magistrate was not proper they will have to
return a verdict to that effect. If, on the other hand, they find that the order made by the
Magistrate is reasonable and proper they have to say so. The section gives the Jury in the
latter case the power to suggest mere modifications of the order originally made and those
modifications become effective only when the Magistrate accepts them.

In case the Magistrate chooses not to accept them the modifications cease to have any
value whatsoever. In fact, the modifications referred to in Sub-section (1) of Section
139 must presumably be of a very minor character and the verdict of the Jury must in
essence be one of approval of the order of the Magistrate as originally made.

14. Thus there can be no doubt that the real effect of the provisions contained in Sub-
section (1) of Section 139 read with Section 135 Clause (b) is that the Jury are required to
pronounce upon the reasonableness or the propriety of the order of the Magistrate made
under Section 133(1). The Jury may bring either of the two verdicts. They may find in
favour of the Magistrate's order and declare that the same is a reasonable or proper order
or they may hold that the order made by the Magistrate was not reasonable or proper in
the circumstances of the case.

It is only when the Jury agree that the order of the Magistrate was a reasonable and proper
order that they may suggest modifications and those modifications, as I have already
indicated, become effective only when the Magistrate accepts them.

15. Sub-section (2) of Section 139 lays down the procedure to be followed when the Jury
does not agree that the order made by the Magistrate was a proper or reasonable order.
That sub-section in terms lays down that no further proceedings shall be taken in the
matter. It is, therefore, clear that where there is a difference of opinion as between the
Magistrate and the Jury as regards the propriety or reasonableness of the order made, the
only course left open to the Magistrate is to discharge the proceedings and take no further
action in the matter.

16. Turning to the facts of these cases it appears the Jury found by a majority that the
business might be allowed to continue and the godowns maintained where they were, and
they merely recommended some structural alterations of the godowns which were of a
minor character. The learned Magistrate however proceeded on the footing that the
verdict thus delivered amounted to a declaration by the Jury that the orders made by him
in the two cases were reasonable and proper.

I fail to see how the verdicts thus brought can be interpreted in this manner. The only
question before the Jury was whether the conditional orders that had been made in the
two cases were reasonable and proper orders. The Jury by their verdicts declared that they
were not proper orders inasmuch as they opined that the trade might be continued and the
godowns might be maintained where they were, The verdict must therefore, be taken to
mean that they found that the orders made by the Magistrate were not proper orders. They
did not regard the continuance of the trade or the business and the maintenance of the
godowns as injurious to public health. They made merely some suggestions which do not
alter the character of the verdicts and which cannot possibly be taken to be
"modifications" of the orders.
The real effect of their verdicts can only be that the orders made by the Magistrate were
not proper or were not reasonable. There can be little doubt that the Jury wished the
petitioners to continue the trade or the business. They only suggested some minor
structural modifications to the go-downs.

17. Strictly speaking the modifications suggested by the Jury do not come within the
terms of Sub-section (1) of Section 139. The language of this sub-section, upon a plain
reading, is capable of one construction, and that is where the Jury think that the order of
the Magistrate is a proper and reasonable but they wished to suggest some modifications
to it, they can do so under the provisions of that sub-section.

The modifications must be modifications of the order requiring removal of the nuisance.
That be ing so, the Jury must in essence agree that the orders made were proper and
reasonable to which the modifications relate. In the present case, however, the Jury by
their verdicts declared that the two petitioners should be allowed to continue the trade.

The substance of the verdicts thus delivered is that the orders made by the Magistrate
requiring discontinuance of the trade and removal of the godowns were not reasonable or
proper.

The learned Magistrate completely misread the verdicts and ignored the clear provisions
of Sub-section (2) of Section 139 and made the orders absolute which are now being
questioned before me.

18. If it is found, as it must be found, that the effect of the verdicts of the Jury in the two
cases was that the two orders made by the Magistrate were not reasonable or proper, the
only counsel left open to the Magistrate was to discharge that proceedings and to take no
further action in the matter.

Instead of that the learned Magistrate wrongly interpreted the verdicts of the Jury and
made the orders passed under Section 133(1) absolute 'under Section 139(1) of the Code.
There can he no manner of doubt that the learned Magistrate completely mis-directed
himself in regard to the true import of Section 139(1) of the Code and as such the orders
absolute passed by him under that sub-section cannot possibly be sustained.

19. The result, therefore, is that these two Rules are made absolute and the orders made
by the learned Magistrate in the two cases purporting to have been passed under Section
139, Criminal P. C. are accordingly set aside.