Delhi District Court
Cr No. 328/22 Krishan Kumar vs . State & Anr. on 21 September, 2022
CR No. 328/22 Krishan Kumar Vs. State & Anr.
21.09.2022
Present: Sh. Narender Mukhi, Ld Counsel for Revisionist
Sh. Pramod Kumar, Ld Additional PP for State
Sh. B.P.Vaishnav, Ld Counsel for Respondent no.2
1. Revision petition has been preferred U/s 397 Cr.P.C. against the order dated 16.06.2022 passed by Ld. SDM Najafgarh in case no. 2/23/2020 titled as "State Vs. Rajbir Singh" thereby dropping the proceedings U/s 133 Cr.P.C.
2. Brief facts of the case are that revisionist/ complainant Krishan Kumar filed a complaint U/s 133 Cr.P.C before SDM Najafgarh wherein he raised objection with respect to installation of mobile tower in the premises of respondent no.2 Rajbir Singh at Village & Post Office, Khera Dabar, New Delhi by alleging that mobile tower which is proposed to be installed was without following the guidelines issued by Telecommunication Department and also the other safety requirements were not being followed.
3. On 03.09.2020, SDM Najafgarh passed a conditional order U/s 133 Cr.P.C. whereby directing to stop the process of installation of mobile tower. One, M/s Sumit Digital Infrastructure Pvt. Ltd. submitted a reply before SDM that the tower is being installed after getting necessary permission from the appropriate authority. On the basis of the said permission SDM Najafgarh vide Impugned Order dated 16.06.2022 dropped the proceedings U/s 133 Cr.P.C.
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CR No. 328/22 Krishan Kumar Vs. State & Anr.
4. Revisionists has challenged the impugned order on the ground that the SDM allowed M/s Sumit Digital Infrastructure Pvt. Ltd. to file the reply in the present case whereas it was not a party to the case. It has been submitted that SDM erred in law by not allowing complainants to lead evidence to show how the installation of mobile tower was harmful to them. It is also submitted that Ld. SDM failed to consider that the tower is being installed in gross violation of guidelines of Department of Telecommunication and there should not be any building at a distance less than 20 meters of equivalent height of the antenna of mobile tower. In support of his contentions revisionist has relied upon Sudami Devi Vs Union Of India, Writ C No. 62367 of 2013 decided by Hon'ble Allahabad on 14.11.2013 and Pearl Green Acres Vs UOI DB PIL Petition No. 2774/2012.
5. Under Section 133 Cr.P.C SDM has a power to pass a conditional order to stop nuisance on receiving the report of a police officer or other information and on taking such evidence (if any) as he thinks fit. Section 133 Cr.P.C. is proceeded by the word "public nuisance". Therefore, to make out a case for initiation of proceedings under Section 133 Cr.P.C. a public nuisance has to be established.
6. Term "public nuisance" has not been defined in Cr.P.C rather it is defined by the Indian Penal Code under Section 268, a person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes Criminal Revision Page 2 of 4 CR No. 328/22 Krishan Kumar Vs. State & Anr.
any common injury, danger or annoyance to the public or to the people in general who, dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right. A common nuisance in not excused on the ground that it causes, some convenience or advantage.
7. Thus, "Public Nuisance" shall mean a public nuisance as defined under Section 268 of IPC. "Public Nuisance" is an offence against the public as it affects the public at large, or some considerable portion of them. It may be clarified here that Section 133 Cr.P.C. does not apply to private nuisance and dispute. Proceedings under Section 133 Cr.P.C. are not intended to settle private dispute or disputes between different members of public. Provisions of Chapter-X (133 Cr.P.C.) apply only when the obstruction or nuisance is on public way, river, channel or on any public place. An obstruction or nuisance on a private property cannot be interfered with.
8. Keeping the above principles in mind, SDM after satisfying himself that Municipal Authority has given permission to install Tower and considering the view taken by Hon'ble High Court of Delhi in case titled as "Vikas Luthra Vs. MCD", W.P.(C) 6525/12 wherein it has been held that there is no scientific data available to show that installation of mobile phone towers and the emission of the waves by the said Criminal Revision Page 3 of 4 CR No. 328/22 Krishan Kumar Vs. State & Anr.
towers is any way harmful for the health or hazardous to the health of citizens dropped the proceedings.
9. It is matter of record that permission was granted to install Mobile Tower at property in question to M/s Sumit Digital Infrastructure Pvt. Ltd by South Delhi Municipal Corporation vide its letter dated 14.02.2022. Therefore, it can't be stated that M/s Sumit Digital Infrastructure Pvt. Ltd had no locus to appear and represent before before the SDM as permission was given to said Company for installation of Tower.
10. While passing impugned order, SDM duly considered the permission granted by SDMC for installing the mobile tower. There was nothing before SDM which indicated that installation of Mobile Tower would cause public nuisance and in these facts, SDM has rightly dropped the proceedings initiated under Section 133 Cr.P.C. Impugned order passed by the SDM does not suffer from any material irregularity. There is no merit in the revision petition. Accordingly, revision petition is dismissed.
TCR along with copy of order be sent back.
File be consigned to Record Room.
Digitally signed GAUTAM by GAUTAM MANAN MANAN Date: 2022.09.21 16:53:42 +0530 (GAUTAM MANAN) ASJ-02/DWARKA COURTS NEW DELHI/21.09.2022 Criminal Revision Page 4 of 4