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2021 DIGILAW 309 (JHR)

Lala Steel Private Limited v. State of Jharkhand

2021-03-17

SANJAY KUMAR DWIVEDI

body2021
ORDER : Sanjay Kumar Dwivedi, J. Heard Mr. Suraj Prakash, learned counsel for the petitioner and Mr. Sachin Kumar, learned Additional Advocate General-II appearing for the respondent-State. 2. This criminal writ petition has been filed for quashing the order dated 15.01.2018 passed by the learned Sub-Divisional Magistrate, Chas in connection with M.P. Case No. 03/2018, whereby, proceeding was initiated against the petitioner under Section 133 Cr.P.C. 3. A written report has been made by Rajesh Bauri before the Officer-in- Charge of Chas Police Station alleging therein that adjacent to his house there is one iron-sheet cutter-cum-godown of Gangotri Market Company and in the south side of the said godown, there is 325 feet boundary wall and height of the wall is about 15 feet and his house is south side to the said wall, which has been given on rent to one Ganjhu Manjhi and whenever there is cutting work of iron-sheet in the godown, vibration took place in the said wall. Rajesh Bauri has also made complaint for this to the Manager of the godown, who assured him that he will inform the same to the owner of the company and repair work of the wall will be done. On 21.11.2017, whole wall has fallen on his house during the renovation work and his mother and daughter of Ganjhu Manjhi has been yielded in the debris of the wall and after rescue from the debris, both were found dead. On the basis of the said information, a case being Chas P.S. Case No. 290 of 2017 corresponding to G.R. No.1498 of 2017 for the alleged offence under Section 288, 304A, 120-B/34 I.P.C. has been registered against the accused persons. 4. Mr. Suraj Prakash, learned counsel appearing for the petitioner assailed the impugned order on the ground that Section 133 Cr.P.C. has been invoked without following the procedure prescribed therein. He further submits that without providing any opportunity of hearing and in spite of prayer made by the petitioner, time was not granted and the impugned order has been passed. He also submits that the case of the petitioner is covered in light of the judgment rendered by the Hon'ble Supreme Court in the case of C.A. Avarachan v. C.V. Sreenivasan and another, reported in (1996) 7 SCC 71 . 5. Paragraph 4 of the said judgment is quoted herein below: “4. He also submits that the case of the petitioner is covered in light of the judgment rendered by the Hon'ble Supreme Court in the case of C.A. Avarachan v. C.V. Sreenivasan and another, reported in (1996) 7 SCC 71 . 5. Paragraph 4 of the said judgment is quoted herein below: “4. In our opinion the omission on the part of the Sub-Divisional Magistrate to draw up a preliminary order, which is a sine qua non for initiating proceedings under Section 133 of the Code of Criminal Procedure and without following the procedure provided for by Section 138 CrPC, the order made by the Sub-Divisional Magistrate on 13-1-1988 is unsustainable and is vitiated. The High Court fell in error in not properly appreciating the effect of non-compliance with the mandatory requirements of drawing up a preliminary order before proceedings under Section 133 CrPC. Neither the order of the High Court nor that of the Sub-Divisional Magistrate can therefore be sustained.” 6. Mr. Sachin Kumar, learned Additional Advocate General-II appearing on behalf of the respondent-State by way of drawing attention of the Court to Section 133 Cr.P.C. submits that the provision under Section 133 Cr.P.C. Is an emergency measure to avoid public nuisance. He further submits that the factory was being run in the residential area and due to fall of boundary wall, two persons have died. In such a situation, Section 133 Cr.P.C. was invoked and the petitioner was called upon to file the show-cause and on two occasions, the petitioner failed to file the show-cause and thereafter the authority concerned has passed the impugned order. He also submits that this order is not absolute in terms of Section 133 Cr.P.C. and the petitioner was required to file show-cause and no final order has been passed as yet. He further submits that this Court may not entertain this writ petition under Article 226 of the Constitution of India in view of the fact that the authority concerned has acted within his jurisdiction while passing the impugned order. 7. By way of letter dated 2239 dated 16.12.2017, the petitioner was called upon to file the show-cause. The petitioner was also directed to come forward with the documents in the said notice. Vide order dated 04.01.2018, the proceeding under Section 133 Cr.P.C. was initiated against the petitioner and direction was given to file show-cause. 7. By way of letter dated 2239 dated 16.12.2017, the petitioner was called upon to file the show-cause. The petitioner was also directed to come forward with the documents in the said notice. Vide order dated 04.01.2018, the proceeding under Section 133 Cr.P.C. was initiated against the petitioner and direction was given to file show-cause. On 08.01.2018, the petitioner appeared and prayed for time. The order dated 15.01.2018 has been disclosed that no valid paper has been produced by the petitioner and time was prayed on the medical ground. The impugned order dated 15.01.2018 has been passed, whereby, the petitioner was asked not to operate the factory. It is clearly stated that the petitioner was given show-cause under Section 133 Cr.P.C. The petitioner has not submitted any document before the authority concerned in spite of several show-cause. The factory in question was being run in the residential area and incident took place and, thereafter F.I.R. was lodged and in that situation there was emergency situation and in that view of the matter, the authority concerned has rightly invoked Section 133 Cr.P.C. This is not a final order. The matter is still pending before the authority concerned, as submitted by the learned Additional Advocate General-II. In light of Section 138 Cr.P.C., opportunity to the petitioner is still there in view of the fact that the said proceeding is still pending. By way of Section 135 Cr.P.C., the petitioner is entitled to file show-cause. 8. In the judgment relied by the learned counsel for the petitioner, there was final order under Section 133 Cr.P.C. The petitioner was having knowledge of the proceeding and the petitioner has also appeared. 9. In view of the aforesaid facts, this Court is not inclined to interfere with the impugned order dated 15.01.2018. 10. However, the petitioner is at liberty to approach the authority concerned by way of filing the documents etc. to prove its bonafide within a period of thirty days and if the petitioner approaches the authority concerned, he is directed to pass order in parameter of Section 133 Cr.P.C. 11. Accordingly, this criminal writ petition stands disposed of. Petition disposed of accordingly.