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Basanti Devi W/O Laxmi Chand Vs. Rex - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Judge
Reported inAIR1949All650; 1949CriLJ991
AppellantBasanti Devi W/O Laxmi Chand
RespondentRex
Excerpt:
- - c, does not give the district magistrate or sub-divisional magistrate or a magistrate of the first class power to pass any order that they like for any breach of the law......state of affairs. a report was made on 12th march 1947, by the tahaildar of ghaziabad that one gauri shanker had ereoted a temporary building on ballis which was likely to catch fire and, as it was in the proximity of the tehsil building, there was a danger to the tehsil building and, therefore, proceedings under b. 183, criminal f. c, should be taken against gauri shanker and the building demolished under the provisions of the said section. a notice was issued to gauri shanker, but on the date fixed for hearing he did not appear. on that date the learned magistrate passed an order to the following effect;after service of notice be appeared only on 26th. august 1947, when he was directed to produce the order of the district magistrate of meerut to start the cinema. but he did not.....
Judgment:
ORDER

Malik C.J.

1. This case discloses an extraordinary state of affairs. A report was made on 12th March 1947, by the Tahaildar of Ghaziabad that one Gauri Shanker had ereoted a temporary building on ballis which was likely to catch fire and, as it was in the proximity of the tehsil building, there was a danger to the tehsil building and, therefore, proceedings under B. 183, Criminal F. C, should be taken against Gauri Shanker and the building demolished under the provisions of the said section. A notice was issued to Gauri Shanker, but on the date fixed for hearing he did not appear. On that date the learned Magistrate passed an order to the following effect;

After service of notice be appeared only on 26th. August 1947, when he was directed to produce the order of the District Magistrate of Meerut to start the cinema. But he did not upto this day put in his appearance, nor did he produce the order of the District Magistrate of Meerut. It is, therefore, ordered, as per order in English that the notice dated 9th August 1947, against Oauri Shanker be confirmed. He is hereby ordered to remove the temporary structure of the Empire Talkies in dispute within two months of table order.

2. I do not see what the order of the District Magistrate of Meerut granting permission to start the cinema had to do with the question whether the structure was likely to catch fire and endanger the tahsil building. If Gauri Shanker had started the cinema without a licence, he would be prosecuted under the appropriate statute. There seems to be a misconception in the minds of the District authorities. Section 133, Criminal P. C, does not give the District Magistrate or Sub-Divisional Magistrate or a Magistrate of the First Class power to pass any order that they like for any breach of the law. The section confers extraordinary powers which were meant to be exercised under extraordinary circumstances, where recourse to proceedings under the ordinary law was not possible due to the urgency of the matter. The first part of the section deals with removal of an obstruction or nuisance from a public way, a river or channel which is causing obstruction to the public. The second part of the section deals with the question of prohisition or regulation of trades and occupations or removal of goods or merchandise which are injurious to the health or physical comfort of the community. The third part of the section deals with prevention of construction of buildings or disposal of substance which is likely to occasion conflagration or explosion. Another part deals with dangerous structures, the immediate repair or removal of which is necessary in the interest of the persons living or carrying on business in the neighbourhood or the passer-by. The next part of the section deals with fencing of wells or excavations to prevent danger arising to the public; and the last part deals with the question of destruction of dangerous animals.

3. The idea behind the section is that the danger should be such that if the Magistrate does not take action and only directs the public to have recourse to the ordinary Courts of law or takes action under the ordinary law in the Courts established for the purpose, irreparable damage would be done. It is in these circumstances that the extraordinary powers have been given to Magistrates. The Magistrates are not expected to use the power under Section 133 against a person who can easily be prosecuted under the ordinary law for starting a cinema house without a licence.

4. The order of the learned Magistrate is accordingly Bet aside and the revision is allowed.


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