Madhya Pradesh High Court
Rajeev Sawner vs The State Of Madhya Pradesh on 17 May, 2019
1 THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE M.Cr.C. No.17601 of 2019 (Rajeev Sawner vs. State of MP) Indore, dated : 17.05.2019 Shri A. Khan, learned counsel for the applicant. Shri Yogesh Kumar Gupta, learned Public Prosecutor for the non- applicant No.1- State.
Shri N. L. Tiwari, learned counsel for the non-applicant No.2. Submissions were made on I.A. 3331/2019.
This petition under Section 482 of Cr.P.C. seeks to challenge the interim order dated 12.03.2019 passed by the Sub-Divisional Magistrate, Malharganj, District Indore in Criminal Case No.687/2017.
As per prosecution story, applicant had been conducting music classes in the disputed premises since four decades and the complainant had raised an objection before the SDM in Jansunwai regarding noise pollution emanating from the conduction of such classes and the SDM has passed the impugned order accepting the oral submissions.
Learned counsel for the applicant submits that there is no provision for taking such action in Jansunwai and further that no written application was filed and no evidence was taken and arbitrary order has been passed. He further states that such an order can be passed only if it is found that matter relates to public nuisance under Section 133 of Cr.P.C. but in this case, there is such public nuisance as such. He has also submitted citation of Shaukat Hussain & another vs. Sheodayal Saksaina, AIR 1958 MP 350; and Babulal vs. Vishnu Das, 1976 MPWN 69.
Learned counsel for the non-applicant No.2 submits that the impugned order was passed under Section 133(1)(b) of Cr.P.C. which does not relate to public nuisance and as per this provision, any dilapidated building or structure which is likely to fall thereby causing injury to persons, then the order under this provision can be passed by the 2 THE HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE M.Cr.C. No.17601 of 2019 (Rajeev Sawner vs. State of MP) Magistrate in accordance with law. He has pointed out that in the impugned order, it has been specifically found that disputed premises were dilapidated and part of it had been secured by affixing ply sheet and notice of the Municipal Corporation has already been issued which contained averment that the structure is weak and premises have been rendered dangerous.
Considered rival contentions.
It appears that SDM has passed the order on the ground that disputed premises may crumble due to noise emanating from music instruments being played in the music classes. It does not appear that such conclusion was arrived at on the basis of any expert report. Further, it also does not appear from perusal of the order that any such document was perused in which it has been mentioned that the premises are dilapidated and it is in danger and liable to crumble. Further evidence required under Section 133 of Cr.P.C. has also not been taken in this matter. The application (I.A. No.3331/2019) thus, stands allowed and impugned order is stayed.
Also heard on the point of admission.
Petition is admitted for final hearing.
Record of the SDM be requisitioned.
List immediately after summer vacation.
Certified copy, as per rules.
(Shailendra Shukla) Judge gp Digitally signed by Geeta Pramod Date: 2019.05.17 18:14:54 +05'30'