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Mohammed Rafique Vs. State of Rajasthan and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Judge
Reported in1986CriLJ44; 1985WLN(UC)260
AppellantMohammed Rafique
RespondentState of Rajasthan and anr.
Cases ReferredIn Tarachand v. State of Rajasthan
Excerpt:
.....be removed from the premises. he did not pray that the factory be shifted from that place. so, the learned magistrate has gone one step further, and he passed the order which was never prayed for by motilal applicant. so, this order is a wrong and illegal order which is not in accordance with section 133 cr.pc. no order should have been passed finally without hearing the other party, and that too under section 133 cr.pc. there was no stage of passing any injunction order under section 142 cr.pc. the order dated 15th march, 1983, is no order and cannot be said to be an order under the provisions of section 142 cr.pc.;petition accepted - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h):..........sessions judge, tonk, seems to be a confused person. in his order, he has observed that the learned magistrate passed the order under section 142, cr. p. c. which was a preliminary order, and final order should be passed by the learned magistrate after inquiry. these orders of the learned magistrate being interim orders, no revision could lie against them. he has observed that in such cases, application under section 482, cr. p. c. is maintainable in high court, and he had no power to entertain such applications. however, in spite of these observations, the learned sessions judge disposed of the revision petition on merits, and rejected it. the learned sessions judge should not have disposed of the revision petition on merits. when the order of the learned magistrate was an.....
Judgment:
ORDER

Gopal Krishna Sharma, J.

1. This petition Under Section 482, Cr. P. C. has been preferred against the judgment of the Sessions Judge, Tonk, dt. 17th Jan., 85. The learned Sessions Judge passed this order in a revision petition filed before him against the order of the SDM, Tonk, dt. 21st Feb., '83 and 15th Mar., '83, on application under Sections 133 and 142, Cr. P. C.

2. A preliminary objection was raised by Mr. Garg that this application Under Section 482, Cr. P. C. is not maintainable. He argued that the petitioner had submitted a revision petition in the Court of Sessions Judge, Tonk, which was dismissed vide his order dt. 17th Jan. '85, and so, now a fresh application Under Section 482 Cr. P. C. before this Court, is not maintainable.

3. I may like to mention here that the learned Sessions Judge, Tonk, seems to be a confused person. In his order, he has observed that the learned Magistrate passed the order Under Section 142, Cr. P. C. which was a preliminary order, and final order should be passed by the learned Magistrate after inquiry. These orders of the learned Magistrate being interim orders, no revision could lie against them. He has observed that in such cases, application under Section 482, Cr. P. C. is maintainable in High Court, and he had no power to entertain such applications. However, in spite of these observations, the learned Sessions Judge disposed of the revision petition on merits, and rejected it. The learned Sessions Judge should not have disposed of the revision petition on merits. When the order of the learned Magistrate was an interim order, the learned Sessions Judge should have rejected the revision petition on the ground that no revision lies. So, the order of the learned Sessions Judge, is incorrect and he could not understand the correct position of law. The objection of Mr. Garg has no substance. This Court has ample power to entertain such matters Under Section 482, Cr. P. C.

4. To understand this matter, I may refer that Motilal non-petitioner filed an application Under Section 133, Cr. P. C. before the SDM, Tonk, alleging that the petitioner was running an ice-factory, adjacent to his house. The factory used to store ammoniagas in cylinders, and on account of not keeping the factory according to the rules, cylinders of ammoniagas off and on used to burst which created nuisance and danger to the life of the neighbours, and that in the month of March, 81, one gas-cylinder had burst, resulting in damage of the wall of the house of Motilal, and as the gas spread in the lane, it injured a number of persons, and further that, again on 7th Feb., '83, one more gas-cylinder of ammoniagas had burst, as a result of which, one room of the house of Motilal, was damaged completely and three persons of the family of petitioner Mohammad Raffique also had died. It was further alleged in the said application that as this had created a great nuisance and keeping gas-cylinders would create danger to the life of the persons residing nearby it was prayed that the factory be removed from the site and also the store of the ammoniagas removed from there. After the presentation of this application by Motilal, the learned Magistrate, on 21st Feb., '83, passed the order on the order-sheet, which says that the application was presented before him; opposite party be summoned by notice; and that the application be registered and put up on 1st Mar., '83. Along with the application under Section, 133, Cr. P. C. petitioner Motilal had also filed another application Under Section 142, Cr. P. C. On 21st Feb., '83, when the application Under Section 133, Cr. P. C. was ordered to be registered by the learned Magistrate, he also passed an order on the other application filed Under Section 142, Cr. P. C. filed by Motilal. After giving some facts, the learned Magistrate passed an interim order to the effect that Mohammad Raffique be directed to remove the factory, known as 'Gandhi Ice Factory', from the Gandhi Naswaron-ki, Qafila, Tonk, within 7 days, failing which, the factory would be removed with the help of police. If there was any objection to that order, the opposite party, Mohammad Raffique was ordered to be present on 1st March, '83 in Court. On 1st Mar. '83, Mohammad Rafique appeared before the learned SDM, and submitted his reply. The learned SDM, after hearing both the sides, on 18th March, '83, passed the order that the conditional order passed by him on 21st Feb. '83, is made absolute till the disposal of the application Under Section 133, Cr. P. C. The petitioner, therefore, has challenged both the orders passed by the learned SDM on 21st Feb. and 15th Mar. '83.

5. The case of Mohammad Rafique is that he was running the ice-factory at the same premises since 1964, and that Municipal Board in the year 1965 granted him licence for running the said factory. Therefore, the Collector, Tonk also granted him a licence for this factory. Then in the year 1982, Mohammad Rafique moved an application to the Municipal Board, Tonk, and he was granted sanction to use 30 HP engine in the factory. So, according to Mohammad Rafique, he was running this factory after obtaining licence and permission from the authorities concerned. He denied that any cylinder containing ammoniagas had burst as alleged by Motilal. According to him, a pipe through which gas used to pass, had burst once resulting in leakage of ammoniagas. It was also alleged by him that his children were playing near that pipe, and so, on account of the leakage of the ammoniagas, there had been casualties of his children. But, it was denied that any loss had occurred to Motilal on account of the said leakage of the gas.

6. Mr. Mehrish has argued that Under Section 133, Cr. P. C. the learned SDM had to pass a conditional order for removal of the nuisance. The specimen of the forms in which orders have to be passed, are given in Schedule 2. The relevant form is Form No. 20. So, the learned Magistrate ought to have passed the conditional order Under Section 133, Cr. P. C. in the form as provided in Schedule 2. The present order of the learned Magistrate dt. 21st Feb. 83, is not in accordance with the form as prescribed in Schedule 2. Apart from this, Mr. Mehrish argued that the prayer in the application filed Under Section 133, Cr. P. C. was that working of the factory be stopped, as it had created nuisance, and also the store of the ammoniagas and its distribution, be removed from the factory premises. Similar was the prayer in the application moved Under Section 142, Cr. P. C. So, according to the application filed Under Section 133, Cr. P. C. the prayer was only to stop the working of the factory and to remove the storage of the ammoniagas. It was not the prayer of non-petitioner Motilal that the factory be removed from the premises where it was running. So, the learned SDM passed such an order which was not the prayer of Motilal non-petitioner. The Order dt. 21st Feb. 83, regarding removing the factory from the premises within 7 days, is such an order, for which there was no prayer on behalf of the non-petitioner Motilal. So, this order is an illegal order. The learned SDM should not have passed such an order. He could pass only a conditional order as prescribed in Form-20 of Schedule 2. Similarly, while passing the final order on 15th March '83, the learned SDM confirmed the order dt. 21st Feb. '83 and made that order absolute. That Order dt. 21st Feb. '83, was not a conditional order, but, more or less an order for removing the factory from the premises within 7 days. That order cannot be termed as conditional order. But, that was a final order, giving time to remove the factory within 7 days. The Order of removal of the factory is the final order. Vide Order dt. 15th March '83, he said that the Order dt. 21st Feb. 83 was confirmed and made absolute. The Order dt. 15th March '83 needs no confirmation which was a final order.

7. After perusing the Order dt. 21st Feb. 83, passed by the learned SDM, I have no hesitation to say that this order was not conditional order as it should have been passed Under Section 133, Cr. P. C. Under Section 142, Cr. P. C. an injunction order can be passed during the pendency of the application Under Section 133, Cr. P. C. While passing the order Under Section 142, Cr. P. C. there should have been an order Under Section 133, Cr. P. C. If the Magistrate who passes an order Under Section 133, Cr. P. C. considers that immediate measure should be taken, and there is imminent danger or injury of serious nature to the public, he may issue such an injunction to the person against whom the order was made, and he be required to obviate or prevent such danger or injury pending determination of the matter. So, there should be some conditional order Under Section 133, Cr. P. C. and if thereafter, the Magistrate feels that there is some imminent danger, he is certainly empowered to pass such order against that person requiring him to prevent danger or injury to public till the disposal of the application under Section 133, Cr. P. C. In the present case, the order dt. 21st Feb. '83 which is said to be a conditional order Under Section 133, Cr. P. C. is not a conditional order as required under this section. The learned SDM has passed the final order without hearing the application Under Section 133, Cr. P. C. Apart from this, it was not the prayer of the applicant Motilal to remove the factory from the premises, but, the prayer was that the working of the factory be stopped till the disposal of the application and the storage of gas be removed from the premises. He did not pray that the factory be shifted from that place. So, the learned Magistrate has gone one step further, and he passed the order which was never prayed for by Motilal applicant. So, this order is a wrong and illegal order which is not in accordance with Section 133, Cr. P. C. So, it cannot be maintained. He should have passed some conditional order to the effect that use of Ammoniagas in the ice-factory should be in such a manner, so as not to endanger life of the public and the persons residing nearby, or any order of the like nature as he deemed fit to have passed. But, no order should have been passed finally without hearing the other party, and that too, Under Section 133, Cr. P. C. There was no stage of passing any injunction order Under Section 142, Cr. P. C. The order dt. 15th March '83, is no order and cannot be said to be an order under the provisions of Section 142, Cr. P. C.

8. In Tarachand v. State of Rajasthan 1981 Cri LR (Raj) 273, a similar matter of ice-factory was before this Court, and the said case was decided by Kasliwal, J. In that case, a petition was filed before the SDM, Kishangarh Baas Under Section 133, Cr. P. C. The learned SDM passed an order Under Section 133, Cr. P. C. closing the factory. The petitioners in that case, were given 'show-cause' notice. In their reply they pleaded that it was an industrial area in which there were other factories having their business. The municipal board in that case, after making all inquiries, giving a notice to the opposite side, granted a certificate to the petitioner, for running the factory. They had invested a huge amount, and a tank of Ammoniagas was fixed in a proper manner. But, on account of some technical difficulties, the gas leaked. But the leakage was retained and no loss had occurred to any person. According to the petitioners, the complaint was mala fide as civil litigation was going on in between the two parties, and prayed that the proceedings Under Section 133, Cr. P. C. should be dropped against them. The learned SDM did not agree with the petitioners, and passed the order dt. 13th Jan. 81, holding that he was entitled to pass such conditional order, and was also entitled to hold inquiry on merit. That petition was also Under Section 482, Cr. P. C. and after considering all the aspects, Kasliwal, J. allowed the petition and held that the order closing the factory, itself was wrong and illegal.

9. I have also given my thoughtful consideration to the present matter. The case of Tarachand and another (supra) is fully applicable to the present case, which was also a matter relating to an ice-factory. According to Motilal applicant, there was imminent danger on account of storage of Ammoniagas for the purpose of ice-factory. But, without going into the merits and hearing both the sides, the learned SDM passed the order dt. 21st Feb. '83 as a conditional order Under Section 133, Cr. P. C. for which, 1 have already mentioned above that that is not a conditional order, which is an illegal order. Show-cause notice was given to Mohammad Rafique of the application Under Section 133, Cr. P. C. and along with the said notice, a copy of the application was also sent to the opposite-party. But, a copy of the Order dt. 21st Feb. '83 was not sent to him. In this order, Mohammad Rafique was asked to remove the factory within 7 days, from the premises, failing which, it was to be removed with the help of police. He was not given notice of this order. It is very strange that the learned SDM passed the order asking him to remove his factory within 7 days from the premises without intimating him of this order: Then, after hearing both the sides, he passed the Order dt. 15th March 83, by which, he made the Order dt. 21st Feb. '83 absolute. This order is also a wrong and illegal order. The learned Magistrate should have passed a conditional order that till the disposal of the application Under Section 133, Cr. P. C. the opposite party, i.e. Mohammad Rafique should run the factory in such a manner so as not to endanger the life of other persons or create public nuisance. He should have directed to keep Ammoniagas in such a safe condition that it might not leak out in future till the disposal of the application. So, the order regarding shifting the factory from the premises, is an illegal and incorrect order, which cannot be sustained.

10. In view of my above discussion. I am of the opinion that the order passed by the learned SDM, Tonk, dt. 21st Feb. '83 and 15th March '83, are illegal orders, as they were not passed in accordance with the provisions of Sections 133 and 142, Cr. P. C. Both the orders are, therefore, set aside. As the matter relates to public safety, public nuisance and imminent danger to public life, I would like to impose certain conditions while accepting this petition Under Section 482, Cr. P. C.

11. The petition Under Section 482, Cr. P. C. is accepted. The orders of the learned Magistrate dt. 21st Feb. and 15th March '83, are set aside, with the clarification that petitioner Mohammad Rafique would be allowed to run the factory, provided, he makes proper arrangements for keeping the Ammoniagas in a proper and safe manner, so that, it may not leak or come out either from storage or pipes in order to cause imminent danger or nuisance to public or the residents of that locality. The learned SDM, Tonk, is directed to hold inquiry on the application Under Section 133, Cr. P. C. and grant permission to the parties to lead their evidence and dispose of the application expeditiously.

12. The order of the learned Sessions Judge, Tonk, dt. 17th Jan. '85, upholding the orders passed by the learned SDM, Tonk, is also set aside as indicated above.


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