Bombay High Court
Taj Enterprise, Prop. Sameer Khan vs State Of Goa, Thr. Public Prosecutor, ... on 23 July, 2024
2024:BHC-GOA:1192 12 WPCR 851 OF 2023 F.ODT
2024:BHC-GOA:1192
Esha
IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL WRIT PETITION NO. 851 OF 2023 (F)
1. Taj Enterprise, Sameer Khan,
Proprietor, 40 years of age, Dhavli,
Ponda, Goa.
2. Lucky Traders, Alam Khan,
Proprietor, 45 years of age, Dhavli,
Ponda, Goa.
3. A.K. Traders, Mohidin Khan,
Proprietor, 51 years of age, Dhavli,
Ponda, Goa. ... Petitioners
Versus
1. State of Goa, Through Public
Prosecutor, Advocate General Office,
Porvorim, Goa.
2. Village Panchayat of Queula, Queula,
Ponda, Goa.
3. R.K. Trading, Balakrishna Agarwal,
Dhavli, Ponda, Goa.
4. Om Sai Traders, Dhavli, Ponda, Goa.
5. M/s Shah Enterprises, Dhavli,
Ponda, Goa.
6. National Enterprises, Dhavli, Ponda,
Goa.
7. M/s S.M. Shah Traders, Samsulla
Shah, Proprietor, 52 years of age,
Dhavli, Ponda, Goa.
8. A Yan Trader Yakub Khan,
Proprietor, 38 years of age, Dhavli,
Ponda, Goa.
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12 WPCR 851 OF 2023 F.ODT
9. J.P. Traders, Mohammed Parvez
Khan, Proprietor, 48 years of age,
Dhavli, Ponda, Goa. ... Respondents
*****
Mr. Joaquim Godinho, Advocate for the Petitioners.
Mr. Somnath Karpe, Additional Public Prosecutor for
Respondent No. 1.
CORAM: BHARAT P. DESHPANDE, J.
DATED: 23rd JULY 2024
ORAL JUDGMENT:
1. Rule. Rule made returnable forthwith.
2. The matter is taken up for final disposal at the admission stage itself with consent.
3. The issue which has been raised in the present Petition is to the rejection of the Application filed by the Petitioners thereby objecting to a private lawyer appearing in the matter filed under Section 133 of Cr.P.C. for and on behalf of the Complainant.
4. Mr. Godinho appearing for the Petitioners would submit that the Executive Magistrate took cognizance of a complaint filed by the Sarpanch in connection with public nuisance and Page 2 of 12 23rd July 2024 ::: Uploaded on - 29/07/2024 ::: Downloaded on - 02/08/2024 21:33:24 ::: 12 WPCR 851 OF 2023 F.ODT thereafter, initiated proceedings against the Petitioners. He submits that the Petitioners raised objections with regard to the appearance of a private Advocate for and on behalf of the Sarpanch/Complainant in the said proceedings on the ground that the case is with regard to public nuisance and therefore, the State must represent through the learned Government Advocate or through the learned Public Prosecutor and a private Advocate should not be allowed to plead on behalf of the Complainant. He submits that at the most, a private Advocate could assist the Prosecutor, who has to represent the State in such matters.
5. The main thrust of the argument is that the complaint is with regard to the public nuisance and therefore, the State is involved and hence, the matter needs to be represented by the Prosecutor before the concerned Magistrate. Mr. Godinho while inviting attention to various provisions of the Cr.P.C. would submit that when a case is filed by the State or when the State is involved, normally, the Prosecutor appears and pleads the case.
6. According to Mr. Godinho, the objections raised by the Petitioners were rejected by the Deputy Collector and thereafter, by the Additional Sessions Judge in the Criminal Revision. He submits that both the Authorities failed to consider the various Page 3 of 12 23rd July 2024 ::: Uploaded on - 29/07/2024 ::: Downloaded on - 02/08/2024 21:33:24 ::: 12 WPCR 851 OF 2023 F.ODT provisions of the Cr.P.C. including the fact that the Court of Executive Magistrate comes within Section 6 of Cr.P.C. and therefore, the matters conducted before it are required to be prosecuted by the Prosecutor. In this respect, Mr. Godinho while placing reliance on the decision of this Court in the case of State of Goa Vs. Rosario Ferrao, 2023 (1) Goa L.R. 338 (Bom) (PB) would submit that this Court discussed the role of the Public Prosecutor in a matter filed by the State and held that the Prosecutor has to lead the case and at the most, the Complainant/Victim could assist the Prosecutor.
7. Per contra, Mr. Karpe appearing for the State would submit that first of all, the provisions of Section 133 of Cr.P.C. operate on two different criteria, firstly, on a police report and secondly, on other information. He submits that the second criteria, "other information" could be a complained in writing by a private person, who initiates proceedings for the removal of public nuisance. He submits that such a complaint specifically comes under Section 200 of Cr.P.C. as a private complaint before the Executive Magistrate, who is entitled to take cognizance and conduct a summary inquiry.
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8. Mr. Karpe would further submit that the State is not involved directly in such proceedings since there is no police report. It is submitted that it is purely a case which comes under the "other information" clause, which could be filed by any other private person including the Sarpanch. In such a case, there is no need for the Prosecutor to appear for and on behalf of the private person and plead the case.
9. Mr. Karpe would submit that there is no bar under Section 133 of Cr.P.C. for a private lawyer to appear and represent the Complainant. Mr. Karpe while placing reliance in the case of Kachrulal Bhagirath Agrawal & Others Vs. State of Maharashtra & Others, (2005) 9 SCC 36 would submit that such proceedings are more in the nature of civil proceedings than of criminal nature and the initiation of the proceedings is to conduct summary inquiry for removal of public nuisance.
10. The rival contentions fall for consideration.
11. In the present matter, the complaint is lodged by the Sarpanch of Village Panchayat of Queula, Ponda, Goa for public nuisance against the Respondents therein, by erecting and operating scrap yards. The Complainant in his capacity of Page 5 of 12 23rd July 2024 ::: Uploaded on - 29/07/2024 ::: Downloaded on - 02/08/2024 21:33:24 ::: 12 WPCR 851 OF 2023 F.ODT Sarpanch of the said village is entitled to lodge such a complaint before the concerned Magistrate. Such a complaint cannot be considered as a police report of a police officer. It has to be termed as "other information" as found in Section 133 of Cr.P.C. The Executive Magistrate is empowered to take cognizance of a police report or any other information received by him for initiating proceedings under the said provisions. Thus, it is clear from the record that the complaint lodged by the Sarpanch is not a report of the police officer, but it is based on other information. Since the Magistrate is empowered to take cognizance of such other information, disclosing public nuisance and to conduct the summary inquiry, the question of representing such a Complainant or the person providing such information before the Magistrate, needs to be examined in the present Petition.
12. Mr. Godinho would submit that since the complaint is with regard to the public nuisance, it is the State who has to represent the Complainant or Sarpanch through the Prosecutor. In this respect, he claimed that the Court of Executive Magistrate falls in Section 6 of Cr.P.C., which defines the classes of Criminal Courts as found in clause (ii) of Section 6 of the Cr.P.C. Similarly, the jurisdiction of such Magistrate is also found in Section 20 of Cr.P.C. The Public Prosecutors are defined in Section 24 and the Page 6 of 12 23rd July 2024 ::: Uploaded on - 29/07/2024 ::: Downloaded on - 02/08/2024 21:33:24 ::: 12 WPCR 851 OF 2023 F.ODT Assistant Public Prosecutors are defined in Section 25 of Cr.P.C. It is no doubt true that the State Government is duty-bound to appoint the Public Prosecutor as well as the Assistant Public Prosecutor to conduct prosecution before the Court of Magistrate. It is also clear from Section 25(3) that when there is no Assistant Public Prosecutor available for the purpose of a particular case, the District Magistrate may appoint any other person to be the Assistant Public Prosecutor incharge of that case. However, it is also clear from the above provisions that the Public Prosecutor is appointed for the purpose of a particular District and is duty- bound to appear and represent the State before the concerned Magistrate.
13. The question in the present matter is whether the Sarpanch of the village, who has filed a complaint for public nuisance could be considered as a State complaint for the purpose of assisting the said Magistrate through the Public Prosecutor.
14. As rightly pointed out by Mr. Karpe the proceedings under Section 133 of Cr.P.C. are summary in nature and particularly more civil in nature, though appearing in the Code of Criminal Procedure. One of the powers which is given to the Executive Magistrate is to pass an order for the removal of public nuisance. Page 7 of 12
23rd July 2024 ::: Uploaded on - 29/07/2024 ::: Downloaded on - 02/08/2024 21:33:24 ::: 12 WPCR 851 OF 2023 F.ODT Thus, even if a complaint is filed by a private person under the caption of "other information" as provided under Section 133 of Cr.P.C., could be entertained by the Executive Magistrate for conducting a summary inquiry. It is no doubt true that when such proceedings are initiated on a police report, it is an action initiated by the State through the concerned police station and thus, the matter needs to be represented by the Prosecutor. However, when the case is reported other than on a police report, it has to be termed as a private complaint wherein the appearance of the Prosecutor for the Complainant is not mandatory or necessary. The Complainant is entitled to be represented by a private Advocate in such matters.
15. In the case of Kachrulal Agrawal (supra), the Apex Court while dealing with the provisions of Section 133 of Cr.P.C. observed in paragraph 10 as under:
"A proceeding under Section 133 is of a summary nature. It appears as a part of Chapter X of the Code which relates to maintenance of public order and tranquility. The Chapter has been classified into four categories. Sections 129 to 132 come under the category of "unlawful assemblies". Sections 133 to 143 come under the category of "public nuisance". Section 144 comes under the category of "urgent cases of nuisance or apprehended danger" and the last category cover Sections 145 to 149 relating to Page 8 of 12 23rd July 2024 ::: Uploaded on - 29/07/2024 ::: Downloaded on - 02/08/2024 21:33:24 ::: 12 WPCR 851 OF 2023 F.ODT "disputes as to immovable property". Nuisances are of two kinds, i.e. (i) Public; and (ii) Private. 'Public nuisance' or 'common nuisance' as defined in Section 268 of the Indian Penal Code, 1860 (in short the 'IPC') is an offence against the public either by doing a thing which tends to the annoyance of the whole community in general or by neglecting to do anything which the common good requires. It is an act or 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. 'Private nuisance' on the other hand, affects some individuals as distinguished from the public at large. The remedies are of two kinds - civil and criminal. The remedies under the civil law are of two kinds. One is under Section 91 of the Code of Civil Procedure, 1908 (in short 'CPC'). Under it a suit lies and the plaintiffs need not prove that they have sustained any special damage. The second remedy is a suit by a private individual for a special damage suffered by him. There are three remedies under the criminal law. The first relates to the prosecution under Chapter XIV of IPC. The second provides for summary proceedings under Sections 133 to 144 of the Code, and the third relates to remedies under special or local laws. Sub- section (2) of Section 133 postulates that no order duly made by a Magistrate under this Section shall be called in question in any civil Court. The provisions of Chapter X of the Code should be so worked as not to become themselves a nuisance to the community at large. Although every person is bound to so use his Page 9 of 12 23rd July 2024 ::: Uploaded on - 29/07/2024 ::: Downloaded on - 02/08/2024 21:33:24 ::: 12 WPCR 851 OF 2023 F.ODT property that it may not work legal damage or harm to his neighbour, yet on the other hand, no one has a right to interfere with the free and full enjoyment by such person of his property, except on clear and absolute proof that such use of it by him is producing such legal damage or harm. Therefore, a lawful and necessary trade ought not to be interfered with unless it is proved to be injurious to the health or physical comfort of the community. Proceedings under Section 133 are not intended to settle private disputes between different members of the public. They are in fact intended to protect the public as a whole against inconvenience. A comparison between the provisions of Section 133 and 144 of the Code shows that while the former is more specific the latter is more general. Therefore, nuisance specially provided in the former section is taken out of the general provisions of the latter section. The proceedings under Section 133 are more in the nature of civil proceedings than of criminal nature. Section 133(1)(b) relates to trade or occupation which is injurious to health or physical comfort. It deals with itself physical comfort to the community and not with those which are in themselves nuisance but in the course of which public nuisance is committed. In order to bring a trade or occupation within the operation of this Section, it must be shown that the interference with public comfort was considerable and a large section of the public was affected injuriously. The word 'community' in Clause (b) of Section 133(1) cannot be taken to mean residents of a particular house. It Page 10 of 12 23rd July 2024 ::: Uploaded on - 29/07/2024 ::: Downloaded on - 02/08/2024 21:33:24 ::: 12 WPCR 851 OF 2023 F.ODT means something wider, that is, the public at large or the residents of an entire locality. The very fact that the provision occurs in a Chapter with "Public Nuisance" is indicative of this aspect. It would, however, depend on the facts situation of each case and it would be hazardous to lay down any straitjacket formula."
16. In the case of Rosario Ferrao (supra), the issue raised before this Court was completely different. The victim assisted by a private Advocate was insisting that she should be allowed to address the Court independently. Such aspect was negated by this Court on the ground that the provisions only permit the Complainant/Victim to assist the Prosecutor, but not parallelly address the Court. Accordingly, the observations of this Court in the case of Rosario Ferrao (supra) will be of no assistance to the Petitioners.
17. The present proceedings are filed by taking recourse to the supervisory as well as extraordinary powers of this Court under Article 227 of the Constitution and Section 482 of Cr.P.C. While dealing with such powers, the Petitioners are required to demonstrate as to whether the impugned order suffers from any illegality or perversity. The matter in hand clearly goes to show that the objections raised by the Petitioners with regard to the Page 11 of 12 23rd July 2024 ::: Uploaded on - 29/07/2024 ::: Downloaded on - 02/08/2024 21:33:24 ::: 12 WPCR 851 OF 2023 F.ODT appearance of a private Advocate for the Sarpanch were rejected by the Deputy Collector and thereafter, by the Revisional Court. Both these orders disclose reasons for such rejection. Thus, these orders cannot be termed as perverse or illegal since the provisions were considered and more particularly, the fact that the Sarpanch who filed the complaint is not a police officer or it is not a police report. The Sarpanch in his individual capacity lodged a complaint, which could be considered as a private complaint and under the caption "other information" which the Magistrate is entitled to take cognizance of. Accordingly, the Petition needs to be rejected and stands rejected.
18. Rule stands discharged. No costs.
BHARAT P. DESHPANDE, J.
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