ISSUE:
Whether by affirmative action a court can compel a statutory body to carry out its duty to the community by constructing sanitation facilities at great cost and on a time-bound basis?
RULE:
The public power of the magistrate under Section 133 CrPC is a public duty to the members of the public who are victims of the nuisance, and so he shall exercise it when the jurisdictional facts are present as here. Thus, the Magistrate can compel municipality to make drains and improve sewerage affecting the health and convenience of the residents.
The criminal procedure code operates against statutory bodies and others regardless of the cash they possess, even as human rights under Part III of the Constitution have to be respected by the State regardless of budgetary provision. Likewise, Section 123 of the Act has no saving clause when the municipal council is penniless.
Judicial discretion when facts for its exercise are present is mandatory.