ORDER Narain Singh Azad, J.—First Additional Sessions Judge, Burhanpur, disallowed the Petitioner's Criminal Revision No. 68/2001, on 29th August, 2001, wherein, the Petitioner challenged the order dated 18th April, 2001, passed by S.D.M. Burhanpur, in Criminal Case No. 10/93, giving rise to an opportunity to the Petitioner for seeking exercise of inherent powers. 2. The facts which persuaded the Respondent No. 1 to file a petition against this Petitioner u/s 133 of the Code of Criminal Procedure may be summarized as follows on 16th August, 1993, a petition u/s 133 of the Code of Criminal Procedure, which will hereinafter referred to as Code, was filed in the Court of S.D.M., Burhanpur, on behalf of Respondent No. 1, which stood registered as Case No. 10/93. As per photocopy of this petition, Respondent No. 1 is running an educational institution called "Bal Vinay Mandir", in the residential house of Madhavpurkar, situated at Mahajanpeth Ward, Burhanpur, since 1978, which is registered with Board of Education/Department of Education, Madhya Pradesh, and which imparts education to about 300-400 students annually, studying in Classes 1st, 2nd and 3rd. On the eastern side of this institution, the Petitioner has erected looms by constructing a hall on the vacant land of his father, whereas, he obtained permission from Municipal Corporation for constructing a residential house. It is also the case of Respondent No. 1 that Municipal Corporation, Burhanpur, has prohibited the erection of power-loom or additional power-looms within the prescribed area, in exercise of power provided u/s 246 of the Municipal Corporation Act, 1956, still the Petitioner is running these looms illegally, without obtaining any permission. It is further the case of Respondent No. 1 that on account of running of the looms erected by this Petitioner, the whole atmosphere has become troublesome to the students of the institution and to the neighbouring inhabitants, who are ailing and old, because it creates unbearable noise which is adversely affecting the hearing power of the children. Since cotton is being used in these power looms, hence the thin particles are continuously being spread in the atmosphere, which again adversely affects the health. Then, the running of these looms creates constant vibrations in the neighbouring houses, inclusive of Vinay Bal Mandir, where 300 to 400 students are facing the trouble in obtaining their education. Since cotton is being used in these power looms, hence the thin particles are continuously being spread in the atmosphere, which again adversely affects the health. Then, the running of these looms creates constant vibrations in the neighbouring houses, inclusive of Vinay Bal Mandir, where 300 to 400 students are facing the trouble in obtaining their education. On the aforesaid facts, the Respondent No. 1 sought the closure of the power-looms of the Petitioner on the ground of public nuisance. 3. By order dated 25-4-1994 the learned S.D.M. after enquiry, disallowed and rejected the petition filed on behalf of Respondent No. 1, on the ground that the case of Respondent No. 1 does not fall in the category of public nuisance. Respondent No. 1 challenged the aforesaid order in Criminal Revision No. 27/94, which was allowed by A.S.J. Burhanpur, on 3rd December, 1998, who remanded the case with this direction that the petition of Respondent No. 1 be disposed of in a period of three months according to law, keeping in view this fact that the allegations levelled by Respondent No. 1 in her petition, fall within the category of public nuisance, as explained in paragraph 9 of the order. 4. Thereafter, the learned S.D.M. disposed of the case afresh by order dated 18-4-2001, by issuing this direction to the Petitioner u/s 138(2) of the Code that he must immediately close the "KARKHANA" (Workshop) situated on eastern side of Bal Vinay Mandir, after a distance of 4 to 5 feet. This Respondent unsuccessfully challenged the aforesaid order in Criminal Revision No. 68/2001, which stood disposed of by First A.S.J. Burhanpur, on 29th August, 2001, giving rise to this petition. 5. It is submitted on behalf of the Petitioner that case of Respondent No. 1 does not fall in the category of public nuisance because inconvenience to a class of persons cannot be termed to be public nuisance. In support this argument, Shri Manish Datt has drawn the Court's attention to the case of Ram Autar Vs. State of U.P., . It is submitted on behalf of the Petitioner that case of Respondent No. 1 does not fall in the category of public nuisance because inconvenience to a class of persons cannot be termed to be public nuisance. In support this argument, Shri Manish Datt has drawn the Court's attention to the case of Ram Autar Vs. State of U.P., . But in that case, the noise caused by auction of vegetables in a private house in city was causing discomfort to the people living in the neighbourhood and the Cars parked in public road outside the house were causing inconvenience to the passers by, which were totally different circumstance from this case and hence the cited authority does not help the Petitioner. 6. Shri Manish Datt, appearing for the Petitioner has placed reliance in a case reported in Kalyan Mul Mathur Vs. Emperor, , also in support of this argument that the alleged sufferers are not examined on behalf of Respondent No. 1 and hence the order passed by S.D.M. on 18-4-2001 is liable to be quashed. But in aforesaid case, the learned Magistrate did not take the evidence of witnesses produced on behalf of the party against whom, the order was passed, which is not the case here, because in the present case, opportunity to adduce evidence is afforded to both the parties, and hence this authority also does not come to the rescue of the Petitioner. 7. It is further argued by Shri Manish Datt that the learned S.D.M. did not appoint any person to make the local investigation or spot inspection for ascertaining the facts as alleged in the petition filed on behalf of Respondent No. 1 and hence the impugned order passed by him is liable to be quashed. In support of this argument, he has placed reliance on Kailash Narain v. State of M.P., reported in 1992 M.P W.N. 291. But, as provided in Section 139 of the Code, for the purpose of an enquiry u/s 137 or 138 of the Code, the local investigation is not mandatory, for passing an order u/s 138. In support of this argument, he has placed reliance on Kailash Narain v. State of M.P., reported in 1992 M.P W.N. 291. But, as provided in Section 139 of the Code, for the purpose of an enquiry u/s 137 or 138 of the Code, the local investigation is not mandatory, for passing an order u/s 138. A discretion is of course provided to the Magistrate for issuing a direction to carry out local investigation, which he exercised in Kailash Narain v. State of M.P. (supra), by calling a report from Tehsildar, which was not found proper, on the ground that in case the Magistrate was of the opinion that the report of spot inspection is necessary for ascertaining the facts, he ought to have exercised the power u/s 139 of the Code and in that case too, the S.D.M. ought to have recorded the statement of the person so appointed to make local investigation for ascertainment of the facts. Thus, on account of difference in facts, the aforesaid authority also does not help the Petitioner in any way. 8. Lastly, it is also submitted by Shri Manish Datt that the Petitioner is running power loom for a considerable period of time, preceding to filing of petition by Respondent No. 1 and hence the same could not have been taken as a case of urgency in which only the power provided u/s 133 of the Code, is permitted to be exercised, and so also the impugned order need to be set aside. In support of this contention, he has drawn my attention to the case of Sardar Sharad Kumar v. State of M.P., reported in Note No. 84 M.P.W.N. 1980 21. But in that case, the existence of public nuisance was not proved and hence the Court did not treat it to be a case of urgency whereas, in the present case, on account of public nuisance, the exercise of extra-ordinary powers, provided u/s 133 of the Code, is found justified. 9. In the case of Manjhi Raghu, reported in 1964 (2) Cri.LJ. 94, a Rice Mill working at night during season, was held to be causing public nuisance to the inhabitants of the locality. 9. In the case of Manjhi Raghu, reported in 1964 (2) Cri.LJ. 94, a Rice Mill working at night during season, was held to be causing public nuisance to the inhabitants of the locality. Similarly, in Raghunandan's case reported in (1931) 53 All 706, where the engine of a factory was causing noise so as to be serious nuisance to the people living in the neighbourhood, the exercise of power u/s 133 of the Code was held justified. 10. Then, it is found explained in 15 Edition of commentary on Code, written by Ratanlal and Dhirajlal, referring many authorities that a public right does not depend upon the number of individuals who enjoy it. It is generally speaking that which must be enjoyed by members of the general unascertained mass of the public. The best criterion will be to see whether the right is vested in such a large number of persons as to make them unascertainable and to make them a community or class. 11. Thus, the learned S.D.M. so also the Revisional Court is found to have committed no illegality in recording the opinion that the case of Respondent No. 1 falls in the category of public nuisance. 12. The Learned Counsel appearing for the Petitioner has drawn my attention to different parts of statements of various witnesses, in support of this argument that the learned S.D.M. has not correctly appreciated the evidence for recording his opinion on public nuisance. But the reappreciation of evidence is not permissible and the appreciation recorded by S.D.M. so also the Revisional Court, in recording the finding of public nuisance, is not found to be perverse, therefore, no case of miscarriage of justice, requiring interference in exercise of inherent powers is made out. 13. In result, this petition does not merit, which is accordingly disallowed and rejected at the stage of motion hearing. Final Result : Allowed