Mohd. Gulzar v. State

Mohd. Gulzar v. State

By Ashmit Sen[1]

In the High Court of Judicature for Rajasthan at Jodhpur

NAME OF THE CASEMohd. Gulzar v. State
CITATIONS.B. Criminal Misc. (Pet.) No. 194 / 2016  
DATE OF THE CASE15 February, 2018
PETITIONERMohd. Gulzar S/o Shri Haji Mehboob Khan
RESPONDENTS1.   State of Rajasthan through the Public Prosecutor. 2.   Dhanraj Nai S/o Shri Hardev Nai 3.   Gyanchand Sen S/o Shri Om Prakash Sen, 4.   Khushhal ram S/o Shri Ratna Ram 5.   Naval ram S/o Shri Ghanwar Lal 6.   Rewat Lal Sen S/o Shri Binja Ram 7.   Prakash S/o Shri Hardev Ram 8. All residents of Rohitnagar, Bap, District Jodhpur.  
BENCH/JUDGEHon’ble Justice Mr. Sandeep Mehta  
STATUTES INVOLVEDCode of Criminal Procedure, Indian Penal Code
IMPORTANT SECTIONS/ARTICLESCode of Criminal Procedure: Sections – 133, 137,138,482 Indian Penal Code: Section – 268  

Abstract

The present case deals with the issue whether an executive magistrate can pass a final order directly on the basis of a complaint of public nuisance without following the provisions of Section 133 of CrPC and when the person against whom, the complaint had been made, had expressly denied the allegations, is it mandatory for the executive magistrate to perform an inquiry according to the provisions of Sections 137 and 138 of CrPC or not. The executive magistrate had not done either of the two things mentioned above and hence, the case went to the High Court challenging the order given by the Executive Magistrate and High Court had held that it was mandatory for the Executive Magistrate to follow the mandatory provisions of Section 133 and 138 of CrPC and therefore, the order given by the executive magistrate was quashed by the High Court.

Introduction

Public Nuisance

According to Section 268 of IPC, public nuisance is defined as an any act or an 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, or any act or illegal omission which necessarily causes injury, obstruction, danger or annoyance to persons who may have occasion to use any public right.

Therefore, the essential condition for an act to be called as a public nuisance is that the act or the omission of an act results in causing any common injury, danger or annoyance to the public and people in general or results in an obstruction or an infringement of their public rights.

For removal of any public nuisance, Section 133 of CrPC is to be used which states that the Magistrate can draw up a conditional order for removal of such nuisance if he is satisfied that conditions do exist which requires him to draw up such an order. The provisions of this section are deemed to be mandatory and it has to be followed before giving a final order.

In this particular case, the residents of the concerned locality had submitted a complaint of public nuisance against Mohd. Gulzar for running a leather business factory in that locality and based on that complaint, the executive magistrate had directly given a final order directing the closure of the leather business without following the procedures of Sections 133, 137 and 138 of CrPC and this order was challenged in the High Court of Rajasthan.

Facts of the case

The Petitioner, Mohd. Gulzar, originally from Uttar Pradesh, was the owner of the leather factory in a residential area. The other residents of the locality, on the reason of public nuisance and infringement of public rights, had submitted a complaint to the Executive Magistrate against Mohd. Gulzar under Section 133 of Code of Criminal Procedure, 1973. The learned Executive Magistrate had accepted the complaint submitted by the respondents under Section 133 of CrPC. and directed closure of the leather business allegedly being run by the petitioner in a residential area. The Petitioner, Mohd. Gulzar had then approached the High Court of Rajasthan by way of the instant misc. petition under Section 482 of CrPC., challenging the order dated 04.03.2015 passed by the learned SDM, Bap in Case No.05/2014 regarding the order of closure of the leather business factory as well as the order dated on 03.12.2015 passed by the learned Additional Sessions Judge, Phalodi in revision whereby the order of the learned Executive Magistrate was affirmed.

Issues raised before the Court

  1. Whether it is mandatory for the Executive Magistrate to draw up a preliminary order under Section 133(1) of CrPC before giving out a final order?
  2. Whether it is mandatory for the Executive Magistrate to conduct an inquiry as per Sections 137 and 138 CrPC. and to record evidence of the parties before deciding the matter to finality when the petitioner had denied the existence of any public nuisance or infringement of public right?

Arguments from the Petitioner

Learned counsel for the Petitioner, Shri D.L.R. Vyas submitted that the order passed by the learned Magistrate was grossly perverse and amounted to a sheer abuse of process of law as the learned Magistrate failed to draw the mandatory preliminary order required under Section 133(1) of CrPC. Furthermore, the petitioner had denied the existence of any public nuisance or infringement of public right and, therefore, it was obligatory for the Executive Magistrate to have made an inquiry as per Sections 137 and 138 of CrPC and to have recorded evidence of the parties before deciding the matter to finality. He further submitted that the learned Magistrate, without considering the fact that the petitioner had been granted a licence for running the leather business, acted in a biased fashion and directed closure of the petitioner’s    premises without any justification. As per the petitioner counsel, premises in question were being used for residential purpose and as the petitioner was from Uttar Pradesh, therefore, the residents of the locality were not happy at his taking up of residence in the said locality and therefore, they had misused the proceedings under Section 133 of CrPC. as a device to oust the petitioner from his lawfully owned residential property. The Petitioner Counsel, thus implored the Court to accept the misc. petition and to quash the impugned orders.

Arguments from the Respondent

Learned Public Prosecutor and Shri Bhaiya, learned counsel representing the respondents had opposed the submissions advanced by the petitioner’s counsel. They submitted that as two courts of competent jurisdiction had already decided the matter against the petitioner, the High Court should not feel persuaded to exercise its inherent powers so as to interfere in the well-reasoned orders passed by the courts below. The Respondent Counsel argued that the petitioner was causing serious public nuisance by running a leather factory in a residential area which resulted in a serious risk to health of the people living in the neighbouring locality and that amounted to public nuisance. He thus contended that the circumstances did not warrant exercise of inherent powers of the High Court so as to interfere in the order pass by the courts below.

Related Provisions

  • Code of Criminal Procedure, 1973:

Section 133 – “Conditional order for removal of nuisance.

  1.  Whenever a District Magistrate or a Sub- divisional Magistrate or any other Executive Magistrate specially empowered in this of behalf by the State Government, on receiving the report of a police officer or other information and on taking such evidence (if any) as he thinks fit, considers-
  2.  that any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel which is or may be lawfully used by the public[2]; or
  3.  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[3]; or
  4. that the construction of any building, or, the disposal of any substance, as is likely to occasion configuration or explosion, should be prevented or stopped[4]; or
  5.  that any building, tent or structure, or any tree is in such a condition that it is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by, and that in consequence the removal, repair or support of such building, tent or structure, or the removal or support of such tree, is necessary[5]; or
  6.  that any tank, well or excavation adjacent to any such way or public place should be fenced in such manner as to prevent danger arising to the public[6]; or
  7.  that any dangerous animal should be destroyed, confined or otherwise disposed of, such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation, or keeping any such goods or merchandise, or owning, possessing or controlling such building, tent, structure, substance, tank, well or excavation, or owning or possessing such animal or tree, within a time to be fixed in the order-
  8. to remove such obstruction or nuisance; or
  9.  to desist from carrying on, or to remove or regulate in such manner as may be directed, such trade or occupation, or to remove such goods or merchandise, or to regulate the keeping thereof in such manner as may be directed; or
  10.  to prevent or stop the construction of such building, or to alter the disposal of such substance; or
  11.  to remove, repair or support such building, tent or structure, or to remove or support such trees; or
  12.  to fence such tank, well or excavation; or
  13.  to destroy, confine or dispose of such dangerous animal in the manner provided in the said order; or, if he objects so to do, to appear before himself or some other Executive Magistrate subordinate to him at a time and place to be fixed by the Order, and show cause, in the manner hereinafter provided, why the order should not be made absolute[7].
  14. No order duly made by a Magistrate under this section shall be called in question in any Civil Court. Explanation- A” public place” includes also property belonging to the State, camping grounds and grounds left unoccupied for sanitary or recreative purposes.[8]”

Section 137 – “Procedure where existence of public right is denied.

  1.  Where an order is made under section 133 for the purpose of preventing obstruction, nuisance or danger to the public in the use of any way, river, channel or place, the Magistrate shall, on the appearance before him of the person against whom the order was made, question him as to whether he denies the existence of any public right in respect of the way, river, channel or place, and if he does so, the Magistrate shall, before proceeding under section 138, inquire into the matter.[9]
  2.  If in such inquiry the Magistrate finds that there is any reliable evidence in support of such denial, he shall stay the proceedings until the matter of the existence of such right has been decided by a competent Court; and, if he finds that there is no such evidence, he shall proceed as laid down in section 138.[10]
  3.  A person who has, on being questioned by the Magistrate under sub- section (1), failed to deny the existence of a public right of the nature therein referred to, or who, having made such denial, has failed to adduce reliable evidence in support thereof, shall not in the subsequent proceedings be permitted to make any such denial.[11]”

Section 138 – “Procedure where he appears to show cause.

  1.  If the person against whom an order under section 133 is made appears and shows cause against the order, the Magistrate shall take evidence in the matter as in a summons-case[12].
  2. If the Magistrate is satisfied that the order, either as originally made or subject to such modification as he considers necessary, is reasonable and proper, the order shall be made absolute without modification or, as the case may be, with such modification.[13]
  3.  If the Magistrate is not so satisfied, no further proceedings shall be taken in the case.[14]”

Section 482 – “Saving of inherent powers of High Court. Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.”[15]

  • Indian Penal Code, 1860:

Section 268 – “Public nuisance. — A person is guilty of a public nuisance who does any act or is guilty of an 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, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right. A common nuisance is not excused on the ground that it causes some convenience or advantage.”[16]

Judgement

After hearing the arguments of the counsel and having gone through the impugned orders as well as the original record, the High Court of Rajasthan had stated that the arguments advanced by the Respondent Counsel may have looked attractive superficially but the fact remained that if the proceedings under Section 133 of CrPC. were to be initiated, then the learned Executive Magistrate had to follow the mandatory procedure of drawing up a preliminary order as laid down under Section 133 CrPC as the procedure provided by law could not be ignored or overlooked by the Magistrate. The High Court stated that the manner in which the learned Magistrate had proceeded with the present case clearly indicated towards a draconian misuse of powers by the officer concerned. The complaint was filed under Section 133 CrPC. on 15.09.2014 and the Executive Magistrate directed issuance of notice to the petitioner on the very same day without drawing up a preliminary order as mandated by Section 133(1) of CrPC.

The High Court also stated that as the allegation of public nuisance was opposed by the petitioner, the Executive Magistrate was required to conduct an inquiry as warranted under Section 138 of CrPC. before deciding the case to finality. Since the learned Executive Magistrate did not pass a preliminary order in terms of Section 133(1) CrPC., the final order passed by him on 04.03.2015 could not be sustained as the order lacked the foundation of law. The learned revisional court also failed to consider this important legal flaw in proceedings which went to the root of the matter and vitiated the order passed by the Executive Magistrate.

Hence, the High Court held that the instant misc. petition deserved to be and was hereby allowed. The order dated 04.03.2015 passed by the learned SDM, Bap as well as the order dated 03.12.2015 passed by the learned Additional Sessions Judge, Phalodi affirming the said order were hereby quashed and set aside. The matter was sent back to the learned Executive Magistrate who would draw a preliminary order and decide the proceedings afresh after providing appropriate opportunity of hearing and leading evidence to the parties. The High Court also directed that the disputed premises should not be used for running a leather factory till the proceedings under Section 133 of CrPC. were decided afresh and the learned Executive Magistrate was directed to conclude the de-novo proceedings within a period of six months from the date of receipt of copy of the order given by the High Court.

Conclusion

The High Court had rightfully stated that if an order is drawn up without following the mandatory provisions of the Code, then such an order lacked the necessary foundation of law and hence, in this case, the High Court had quashed the order given by the executive magistrate and directed the case to be returned back to the executive magistrate, who had to decide the case by following the mandatory provisions of the code within six months from the date of receipt of copy of the order given by the High Court. In my opinion, the provisions of laws are given so that the procedures can be followed in order to decide a case in a just way and it is the duty of Judges to interpret the provisions in such a way so that the parties get justice and judges should not act in a biased way or interpret the provisions in such a way which clearly indicates towards a draconian misuse of power. The High Court of Rajasthan, in the present case, had also reiterated this very thing and had put emphasis on deciding the case by following the necessary and mandatory provisions of law to arrive at a fair judgement which would provide justice to both the parties.

[1] 4th Semester Student at St. Xavier’s University, Kolkata.

[2] See The Code of Criminal Procedure, 1973, Sec. 133(1)(a).

[3] See The Code of Criminal Procedure, 1973, Sec. 133(1)(b).

[4] See The Code of Criminal Procedure, 1973, Sec. 133(1)(c).

[5] See The Code of Criminal Procedure, 1973, Sec. 133(1)(d).

[6] See The Code of Criminal Procedure, 1973, Sec. 133(1)(e).

[7] See The Code of Criminal Procedure, 1973, Sec. 133(1)(f).

[8] See The Code of Criminal Procedure, 1973, Sec. 133(2).

[9] See The Code of Criminal Procedure, 1973, Sec. 137(1).

[10] See The Code of Criminal Procedure, 1973, Sec. 137(2).

[11] See The Code of Criminal Procedure, 1973, Sec. 137(3).

[12] See The Code of Criminal Procedure, 1973, Sec. 138(1).

[13] See The Code of Criminal Procedure, 1973, Sec. 138(2).

[14] See The Code of Criminal Procedure, 1973, Sec. 138(3).

[15] See The Code of Criminal Procedure, 1973, Sec. 482.

[16] See The Indian Penal Code, 1860, Sec. 268.

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