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2002 DIGILAW 747 (KER)

G. Sivanandan v. K. Bhaskaran

2002-11-15

R.BASANT

body2002
Judgment :- An interesting question as to the effect of an order passed under Sec. 133 of the Code of Criminal Procedure, duly confirmed and made absolute under Sec. 138 Crl.P.C. arises for determination in this case. 2. The revision petitioners are residential occupants in a predominantly residential area. They approached the sub Divisional Magistrate, Trivandurm with a complaint that the counter petitioner was running a saw mill adjacent to their residential buildings causing nuisance to them. It was prayed that action under Sec. 133 Crl.P.C. may be initiated. The Sub Divisional Magistrate initially passed a conditional order under Sec.133 which was duly confirmed under Sec.138 Crl.P.C. It is unnecessary to advert to details. To cut a long story short, it can be stated that by order dt. 17th September, 1998 in Crl.R.P. 500 of 1998 this court upheld the order passed under Sec. 138 Crl.P.C. 3. The counter petitioner subsequently filed Crl.M.C. 5441 of 1998 before this court. The prayer in that Criminal Miscellaneous Case was to direct the Sub Divisional Magistrate to enquire whether nuisance has abated and to pass orders on an application filed by the revision petitioner for permitting the petitioner to continue to run the saw mill. By order dt. 26-10-1998 this court dismissed the said Crl.M.C. as withdrawn "without prejudice to the right of the petitioner to raise all available contentions before the Sub Divisional Magistrate, Trivandrum." Later as the said application was not disposed of promptly by the Sub Divisional Magistrate, the counter petitioner approached this court with O.P. 23672 of 1998 and this court by order dt. 30-11-1998 directed the Sub Divisional Magistrate "to consider and pass orders on Ext. P1 (the said petition) within two months from the date of receipt of copy of the judgment." 4. Thereafter the Sub Divisional Magistrate took up the matter for consideration. The revision petitioner raised objections against the application. It was contended that the order passed under Sec. 138 Crl.P.C. confirmed by the High Court cannot be reviewed or modified by the Sub Divisional Magistrate. It was further contended that on merits there are no grounds justifying any modification. 5. No evidence was adduced by the rival contestants. The Sub Divisional Magistrate appears to have perused the order dt. 3-12-1997 passed by this court in O.P. 17335 of 1993 and the report/letter dt. It was further contended that on merits there are no grounds justifying any modification. 5. No evidence was adduced by the rival contestants. The Sub Divisional Magistrate appears to have perused the order dt. 3-12-1997 passed by this court in O.P. 17335 of 1993 and the report/letter dt. 24.12.1998 sent to him by the Environmental Engineer, Kerala State Pollution Control Board. The Sub Divisional Magistrate thereupon proceeded to pass the impugned order. By the impugned order the Sub Divisional Magistrate modified the earlier final order passed under Sec. 138 Crl.P.C. and held that “the counter petitioner is free to run the saw mill in the present place after obtaining the licence form the local authority and after planting the trees such as Accesia for the width of 2m, creepers over the existing wall and after increasing the height and width of the sand belt in 1 feet and 1 metre respectively." 6. The learned counsel for the revision petitioner contends that the impugned order is bad for the first reason that it amounts to review of an earlier order passed by the criminal court which the said court is not legally competent to do. Secondly it is contended that review if any permissible must have been sought from this court which passed the order in Crl.R.P.500 of 1998. Lastly it is contended that there are absolutely no circumstances on merits warranting the modification of the order. 7. The important question to be decided is whether a final order passed under Sec. 138 Crl.P.C. can be modified. Both counsel submit (and I have myself been unable to trace any) that there is no precedent - binding or persuasive, on this specific question. It is true that there is no provision in Chapter X of the Code of Criminal Procedure which enables, permits or facilitates review/modification of an earlier final order passed under Sec. 138. The learned counsel for the respondent contends that the primary and dominant objective behind an order passed under Sec. 138 Crl.P.C. is the abatement of nuisance. If the nuisance is abated there can be no embargo against continuation of the trade. If courts were to take a rigid view that an order passed under Sec.138 would operate as an embargo in perpetuity against running of such a trade or occupation, that would result in underserved prejudice and hardship as also unreasonableness of the worst variety. If the nuisance is abated there can be no embargo against continuation of the trade. If courts were to take a rigid view that an order passed under Sec.138 would operate as an embargo in perpetuity against running of such a trade or occupation, that would result in underserved prejudice and hardship as also unreasonableness of the worst variety. It must be possible for a person who has suffered an order under Sec. 138 Crl.P.C. to continue the trade or occupation after ensuring that the nuisance has abated. Any contra view would be unreasonable, as it would perpetually operate as an embargo against the person who has suffered the order from carrying on any trade or occupation. The crux or gravamen of an order passed under Sec. 133 (1)(ii) and Sec. 138 is not that the owner should not carry on such trade or business ever thereafter but only that such running of trade or occupation should not be injurious to the health or physical comfort of the community. If it is ensured at any later stage that the running of the trade or occupation is no more injurious to the trade or physical comfort of the community, the order passed under Sec. 133 (1)(ii) and Sec. 138 must be revoked/altered/modified by the Sub Divisional Magistrate. 8. I find force in this submission. It would be impermissible, as it would be oppressive and unreasonable, to conclude that an order passed under Sec. 133(1)(ii) and 138 would operate as an embargo for all time to come against the person who suffered the order from conducting his trade or occupation at the place where such trade or occupation was earlier conducted. Of course I am unable to lay my finger on any specific provision of the Code of Criminal Procedure which permits, enables or facilitates such a modification of to order. But such a power is certainly to be discovered or invented as otherwise the provision would become unreasonable and oppressive. A power to pass an order under Sec. 133(1)(ii) and 138 must necessarily include and inhere the power to modify it in appropriate circumstances. If such a power is not spelt out unreasonableness would result and fairness will be the casuality. A power to pass an order under Sec. 133(1)(ii) and 138 must necessarily include and inhere the power to modify it in appropriate circumstances. If such a power is not spelt out unreasonableness would result and fairness will be the casuality. I am therefore of the opinion that it is perfectly permissible to read into Sec.133(1)(ii) and 138 a power to modify/alter an earlier final order passed under Sec. 138 Crl.P.C. if the necessary circumstances are established satisfactorily. To deny such a power to the court would certainly amount to great underserved prejudice and unreasonableness. 9. I am in these circumstances of the opinion that a Sub Divisional Magistrate who passes an order under Sec. 138 Crl.P.C. does certainly have the jurisdictional competence, if satisfactory and sufficient circumstances are established to alter/modify such order. Such power must be held to be inherently and latently available to the Sub Divisional Magistrate under Sec. 133(1)(ii) and 138 itself. 10. I agree with the learned counsel for the revision petitioner that the order passed by this court dt. 30-11-1998 in O.P.23672 of 1998 or the later order dt. 26th October, 2002 passed in Crl.M.C.5441 of 1998 would not by themselves confer any power on the Divisional Magistrate to alter/modify the earlier final order under Sec. 138 Crl.P.C. if otherwise such power cannot be traced. But I have already held that such a power must be traced in Sec. 133(1)(ii) and 138 itself and it is hence not necessary to consider that aspect in any further detail. 11. What is sought is definitely not a review of the earlier order. The specific contention of the respondent is that circumstances have changed; nuisance has been abated; nuisance does not any more subsist; in these circumstances permission may be granted to continue the trade. This is very different from seeking review of an earlier order passed by the Sub Divisional Magistrate and confirmed by this court. It is trite that a criminal court does not have powers to review its own order. It is also trite that the original order passed by the Sub Divisional Magistrate under Sec. 138 would merge in the revisional order passed by this court. It is trite that a criminal court does not have powers to review its own order. It is also trite that the original order passed by the Sub Divisional Magistrate under Sec. 138 would merge in the revisional order passed by this court. It is unnecessary to advert to precedents on that aspect as the prayer in this case is not for review of the earlier order but for a modification/alteration of the final order on account of circumstances which have subsequently come into existence. 12. That takes me to the last question whether sufficient circumstances are there to justify such alteration/modification. The operative portion of the order is extracted below:- "..In the changed circumstances, the order passed on 27-3-96 is hereby modified that the counter petitioner is free to run the saw mill in the present petitioner is free to run the saw mill in the present place after obtaining the licence from the local authority and after planting the trees such as Accesia for the width of 2m, creepers over the existing wall and after increasing the height and width of the sand belt in 1 feet and 1 metre respectively." (emphasis supplied) It is evident that the nuisance has not abated yet. It is evident that fresh licence has not been issued by the local authority. It is transparently evident that directions of the pollution Control Board have not been complied in full. In these circumstances the conclusion is irresistible that the nuisance has not been abated yet. It was certainly not necessary for the sub Divisional Magistrate to hurriedly modify the order and permit the counter petitioner to run the saw mill which was directed to be closed down by the earlier final order under Sec. 138 Crl.P.C. without and before satisfying himself that all necessary steps to abate nuisance have already been taken in full. Of course if there were satisfactory and convincing evidence to show that all requisite conditions of law have been complied with, the possibility of nuisance abated and requisite licence obtained from the competent local authority, the Sub Divisional Magistrate will certainly be justified in altering/modifying the earlier final order under Sec. 138 Crl.P.C. after due enquiry giving opportunity to the petitioners to make their objections and to adduce evidence if any. 13. 13. But in the facts and circumstances of the present case I am totally satisfied that modification/alteration of the earlier final order under Sec. 138 was not necessary as admittedly the conditions stipulated have not been complied with. An anticipatory permission to the counter petitioner to run the saw mill if requisite conditions were satisfied on a future date was certainly unnecessary and impermissible. The impugned order warrants interference on this sole ground. 14. In the result. a. This Criminal Revision Petition is allowed. b. The impugned order is set aside with the above observations.