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Shaukat HussaIn and anr. Vs. Sheodayal Saksaina - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMadhya Pradesh High Court
Decided On
Judge
Reported in1958CriLJ1319
AppellantShaukat HussaIn and anr.
RespondentSheodayal Saksaina
Cases Referred and Basanti Devi v. Rex A.I.R.
Excerpt:
.....cannot be said that onus shifts exclusively and heavily on him to prove his innocence. conviction of appellant is liable to be set aside. - a finding of this description is clearly not a finding that a public nuisance exists. it is well settled that section 133 applies only to existing, and not potential, nuisances......magistrate has not cared to see that chapter x, as the code of criminal procedure deals with 'public nuisances', and not with private nuisances. the remedy for the latter is a civil suit, although what constitutes-nuisance may be common to both classes. section 133 of the code of criminal procedure provides a speedy and summary remedy in case of urgency where danger to public interest or public health: is concerned. in all other cases the party should be referred to the remedy under the ordinary law. paragraph 3 of section 133 runs as follows:that the conduct of any trade or occupation, or the keeping of any goods or merchandise, 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.....
Judgment:
ORDER

B.K. Chaturvedi, J.

1. The applicants work a small cotton carding machine of five horse power in Mohalla Gajrat Khana Katra in the town of Rewa. The non-applicant filed an application in the Court of the Additional District Magistrate, Rewa, alleging that the small particles of cotton are blown in the air from .the machine and cause harm to breathing and that the machine also produces noise and disturbance to public peace;- so it must be stopped. This application has been granted by the Court below. The present petitioners have been asked to stop the working of the machine. The Court below has also gone beyond its jurisdiction under Section 133 of the Code of Criminal Procedure in issuing an order to the Municipality that the licence granted to the petitioners must be cancelled. The petitioners have come in revision to this Court against the order passed by the Additional District Magistrate, Rewa.

2. The non-applicant raised an objection that, unless the petitioners had applied to the Sessions Court, a revision cannot be entertained under Rule 15, Chapter 4 of the Madhya Pradesh High Court Rules. I understand that this objection was raised at the time of the admission of the revision, but it was overruled. I am of opinion that the High Court should not ordinarily interfere when a party does not exhaust his remedy by applying to the Sessions Court; but at the same time it is difficult to overlook the provisions of the Code of Criminal Procedure. The jurisdiction conferred by tile Code on the High Court Under Sections 435 and 439 is very wide and it should not be fettered by any hard and fast rule. I am fortified in this view by certain rulings; e.g. reported in Basavana Gowd v. Krishna ' Rao Naidu AIR 1916 Mad 713 (A); bihar Municipality v. Mt. Ramnandi Kuer A.I.R. 1941 Pat 548 (B), and Suraj Bali v. Emperor A.I.R. 1942 Oudh 438 (C).

3. As regards the merits of the case, it would be sufficient to state that the learned Magistrate has not cared to see that Chapter X, as the Code of Criminal Procedure deals with 'Public Nuisances', and not with private nuisances. The remedy for the latter is a civil suit, although what constitutes-nuisance may be common to both classes. Section 133 of the Code of Criminal Procedure provides a speedy and summary remedy in case of urgency where danger to public interest or public health: is concerned. In all other cases the party should be referred to the remedy under the ordinary law. Paragraph 3 of Section 133 runs as follows:

that the conduct of any trade or occupation, or the keeping of any goods or merchandise, 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 or the keeping thereof regulated.

It will be obvious that the word 'community' in this paragraph is deliberately used, and that word has a definite meaning. It means the public at large or the residents of an entire locality. The expression 'public nuisance' has been defined in Section 268 of the Indian Penal Code as an act or 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.

4. The learned Magistrate has not discussed or analysed the evidence adduced in the case; but he has stressed the importance of the report of the Health Officer and has also based his decision on. his own inspection note. It is on the basis of these two reports that he has passed an order to the Municipal Board that the licence granted to the applicants must be cancelled. A Magistrate, no doubt, has jurisdiction to pass an order under Section 133, Criminal Procedure Code, directing a person to-whom a licence has been granted by a Municipality for carrying on a trade to take precautions so as to prevent his trade from being a nuisance to the-community; but even then it is inexpedient that a Magistrate should take action in such cases as these matters are left by the Legislature to the control of the Municipal Boards. See Lalman v. Bishambhar Nath 33 Cri LJ 524 : A.I.R. 1932 All 159 (D). A Magistrate has, however, no jurisdiction to ask the Municipal Committee to cancel anybody's licence.

5. A perusal of the evidence makes it clear that the residents of the entire locality have no complaint against the working of the cotton carding machine. The non-applicant Sheodayal Saxena and his neighbours Shri Rajkumar and Abdul Gani, whose son has a tea-shop, are the only persons who have come to depose that the machine works to their discomfort. Shri Maheshwari Prasad, who goes to his motor garage near Sheodayal Saxena's house, and Dr. Ramkumar Singh testify only to the discomfort of Sheodayal Saxena. The other neighbours Ghulam Ghaus, Alta Hussain, Abdul Razzaque, Yar Mohammad, Sheikh Mohammad, Rustam Hussain and Hiralal negative all the evidence adduced by the non-applicant in this case. The only conclusion from this evidence that can be arrived at is that the machine constitutes a nuisance to Sheodayal Saxena and to two or three of his immediate neighbours. A finding of this description is clearly not a finding that a public nuisance exists. Consequently, I am of opinion that Section 133, Criminal Procedure Code, has no application and that the order of the learned Magistrate is erroneous. I am fortified in this view by the decisions in Dwarika Prosad v. B. K. Roy : AIR1950Cal349 , Rameshwar v. Emperor A.I.R. 1939 Bom 92 (F), and Basanti Devi v. Rex A.I.R. 1949 All 650 G). I may also mention that the report of the Health Officer is not legal evidence, unless he is examined in the case. The main portion of the report is in the following words ;.the operation of the machine must cause nuisance to the neighbours by way of floating cotton dust in the air, noise and risk to the health of the workers within the shed where the machine is installed.

The machine is a public nuisance in the locality and must be removed to some other suitable locality in conformity with the essential requirements set forth in the Municipal licence, governing this trade.

At the most, this is a report about potential nuisances, that is, what may become a nuisance in the future. It is well settled that Section 133 applies only to existing, and not potential, nuisances.

6. For reasons stated above, I allow this revision and set aside the order of the learned Additional District Magistrate, Rewa. The non-applicant is at liberty to pursue his remedy in a civil Court against a private nuisance, in case he is so disposed to do.


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