Research › Search › Judgment

J&K High Court · body

2004 DIGILAW 190 (JK)

Kashmira Singh v. S. Darshan Singh

2004-06-10

S.K.GUPTA

body2004
(ORAL): 1. This reference has emanated from proceedings under section 133(1) of the Code of Criminal Procedure (for short "Code" hereafter)., initiated before the Assistant Commissioner UT, Jammu, and the order dated 17.11.2003 passed by the Magistrate, assailed before the additional Sessions Judge, Jammu in revision, in which recommendations have been made for quashing for proceedings, being illegal, improper and unsustainable by the revisional Court vide its reference dated 27.4.2004. 2. Darshan Singh filed an application under Section 133(1) Cr.P.C. before the District Magistrate, Jammu, complaining that Kashmira Singh, respondent, has constructed a Poultry Farm in the locality which is emanating foul smell, resulting in health hazard to the residents of the area, and causing public nuisance with a prayer for its removal. This application, however, stood transferred for disposal under law to Assistant Commissioner (UT), Jammu. Another application is also stated to have been filed by the complainant alongwith three other persons for removal of poultry farm established by the respondent Kashmira Singh in the area located in Tehsil R.S. Pora. This application too was transferred to the Assistant Commissioner (UT), Jammu, for disposal in accordance with law. 3. By an order dated 17.11.2003 the Additional District Magistrate, Jammu, served an order to the petitioner Kashmira Singh under section 133(1) of the Code, calling upon him to close down the poultry farm or to shift the same to some place outside the locality by or before 30.11.2003 and copy of the order was sent to Tehsildar R.S. Pura (Executive Magistrate 1st Class) with the direction that, if respondent fails to comply with the order by or before 30.11.2003, the order may be implemented by use of such force as may be necessary to do so. 4. On going through the record it is found that the order has been passed by the Magistrate under section 133(1) of the Code, even without recording evidence, necessary to find out that the poultry farm alleged to have been run by the respondent was emanating foul smell or otherwise was a health hazard for the residents of the locality. 4. On going through the record it is found that the order has been passed by the Magistrate under section 133(1) of the Code, even without recording evidence, necessary to find out that the poultry farm alleged to have been run by the respondent was emanating foul smell or otherwise was a health hazard for the residents of the locality. Record does not contain any evidence, oral or documentary, except the order stated to have been framed on the basis of spot inspection by the Magistrate, necessary before passing the order under section 133(l)Cr.P.C. In an matter of this nature what is involved is not merely the right of a private individual but the health, safety and convenience of the public at large. The order dated 17.11.2003, drawn by the Magistrate, has gone beyond the scope of a conditional order by which order he required the directing the Executive Magistrate to implement the order in case it is not complied with by the respondent, by use of force as may be necessary. This is an order which is required to be passed after inviting objections and giving sufficient opportunity to the parties to lead evidence, necessary for arriving at a conclusion as to whether or not the conditional order has to be made absolute. This clearly shows that all the proceedings conducted by the Magistrate are inviolation of the mandatory provisions of section 133 to section 138 of the Code. The Magistrate, in his order dated 17.11.2003, has though stated to have given sufficient opportunity of being heard to the respondent but the same is contrary to the record. Record does not show that at any point of time objections were invited from the respondent or opportunity was given to him to adduce evidence in support of his plea that the poultry farm is not serving as a source of nuisance or a health hazard to the inhabitants of the area. The Magistrate further seems to have passed the aforesaid order after considering the material on record, but, on scanning the same it was found that there was absolutely no material except his visit on spot which became the basis of his conclusion that poultry farm located in the area is detrimental to the health of the general public and causing public nuisance. 5. 5. In the instant case the entire finding is based on the inspection of the Magistrate and without reference to any material/evidence on record. The inspection may be for better appreciation of evidence on record but same should not be used as sole basis for deciding the controversy. The revisional Court has rightly pointed out that the order passed by the Magistrate is in clear violation of express provisions of Section 133 to 138 of the Code of Criminal Procedure. It was incumbent for the Magistrate to be satisfied from the evidence on record, including the statement of the complainant, that the poultry farm established by the respondent in his residential house was in fact creating public nuisance, before proceeding under section 133 Cr.P.C, in directing the removal of Poultry Farm. The Magistrate was duty bound to take evidence in the matter, as in summons case. He has thereafter to satisfy himself that order as originally made or subject to such modification as he considers necessary, is reasonable and proper and it is only after recording such satisfaction that conditional order can be made. This, in the instant case, has not been done by the Magistrate and, therefore, the impugned order is unworthy of being sustained. The revisional Court has recommended for quashment of the proceedings and I have no point to take a different view in the matter, in view of non-observance of the procedure prescribed by the law laid down in sections 133 to 138 Cr.P.C. Consequently the reference is accepted and the entire proceedings before the Magistrate initiated under section 133 Cr.P.C., including the order dated 17.11.2003, are quashed. Record be remitted back to the Court below forthwith.