Aboobacker vs State Of Kerala on 25 January, 2014

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Kerala High Court

Aboobacker vs State Of Kerala on 25 January, 2014

This is an application filed by the petitioner challenging the order in Crl.MP.No.1/2014 on the files of the Sub Divisional Magistrate, Perinthalmanna under Section 482 of the Code of Criminal Procedure.

2. It is alleged in the petition that the petitioner is the counter petitioner in Crl.MP.No.1/14 of Sub Divisional Magistrate, Perinthalmanna. The Sub Divisional Magistrate passed Annexure 1 and 2 orders whereby the petitioner was directed to construct a retention wall for the property of the third respondent one Akbar Ali within the time stipulated as per Annexure-2 injunction order under Section 142 of Code of Criminal Procedure. The Sub Divisional Magistrate has no jurisidiction to issue orders either under Sections 133 or 142 of Code fo Criminal Procedure for redressal of an individual right. There is no public grievance involved in the matter. So the petitioner has no other remedy except to approach this Court seeking the following relief:-

to invoke the extra ordinary power of inherent jurisdiction under Section 482 Crl.P.C and quash Annexure-1 order of Sub Divisional Magistrate, Perinthalmanna dated 25.1.2014 and Annexure-II order dated 1.2.2014 in CMP.Mo.1/2014 on the file CRL.M.C.NO.2505 OF 2014 2 of Sub Divisional Magistrate, perinthalmanna.

3. Heard the counsel for the petitioner and the counsel for the third respondent and also the learned Public Prosecutor appearing for respondents 1 and 2.

4. The counsel for the petitioner submitted that admittedly the petitioner is now trying to enforce his civil right through the Sub Division Magistrate and the Sub Divisional Magistrate has no right to invoke Sections 133 or 142 of Code of Criminal Procedure to redress his civil right. Though an objection has been filed before the Magistrate, the Magistrate has not considered that objection but passed the impugned order. Since it is an interim order passed in a proceedings, he cannot file a revision and his remedy to approach this Court under Section 482 of Code of Criminal Procedure for setting aside the order passed by the Court below.

5. On the other hand, the counsel appearing for the third respondent submitted that on ccount of the illegal act of the petitioner by taking earth by using JCB, imminent dangerous has been caused to the building of the third respondent and it is likely to fall at any time. So according to the counsel for the third respondent, it will fall under Section 133 (1) (d) of the Code of Criminal Procedure and it is a duty of the petitioner to give protection for the same. He had relied on a decision in (State of Kerala V Chacko) 1961 KHC 25, (State V.Kochu) 1959 KHC CRL.M.C.NO.2505 OF 2014 3 174, and (Balakrishnan Nambiar V.Madhavan Nambiar) 1985 KHC 100 in support of this case.

6. The learned Public Prosecutor also supported the view of the third respondent.

7. It is an admitted fact that the petitioner's property is situated adjacent to the property of the third respondent and it is also an admitted fact that the third respondent's property is situated on a higher level than that of the petitioner. It is also an admitted fact that third respondent had constructed a building in his property and also a compound wall separating his property from that of the property of the third respondent. When the petitioner removed earth from the boundary by using JCB, according to the petitioner, the foundation of the building of the third respondent and also the compound wall has been affected and that was kept in a dangerous position making it to fall at any time. So he moved a petition before the Sub Diviisonal Magistrate and the Sub Divisional Magistrate after getting report from the village officer issued Annexure-1 conditional order under section 133 (1) (d) of the Code of Criminal Procedure and thereafter the petitioner who was shown as respondent appeared and filed his objections stating that there is no public right involved and it is a private dispute and that will have to be ventilated through civil Court and there is no public interest also involved. So neither sections 133 nor 142 of Code of Criminal CRL.M.C.NO.2505 OF 2014 4 Procedure will be applicable in this case. Without conducting, an enquiry under section 137 of Coded of Criminal procedure regarding the existing of public right, the learned Sub Divisional Magistrate passed Annexure-2 order under section 142 of Code of Criminal Procedure directing the petitioner herein to construct a retention wall so as to give protection to the third respondent's property. These orders is being challenged before this Court.

8. Sections 133 and 142 of Code of Criminal Procedure read as follows:-

Section 133: Conditional order for removal of nuisance:-

(1) whenever a District Magistrate or a Sub Divisional Magistrate or any other executive Magistrate specially empowered in this behalf by the State government, on receiving the report of a police officer or other information and on taking such evidence (if any) as he thinks fit, considers-

(a) that any unlawful obstruction or nuisance should be nuisance should be removed from any public place or from any way, river or channel which is may be lawfully used by the public; or

(b) that the conduct of any trade or occupation, or the keeping of any goods or merchandise, is injuries to the health or physical comfort of the community, and that in consequence such trade or occupation should be prohibited or regulated or such goods or merchandise should be removed or the keeping thereof regulated; or

(c) that the construction of any building, or, the disposal of any CRL.M.C.NO.2505 OF 2014 5 substance, as is likely to occasion conflagration or explosion, should be prevented or stopped; or

(d) that any building, tent or structure, or any tree is in such a condition that it is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by, and that in consequence the removal, repair or support of such building, tent or structure, or the removal or support of such tree, is necessary; or

(e) that any tank, well or excavation adjacent to any such way or public place should be fenced in such manner as to prevent danger arising to the public; or

(f) that any dangerous animal should be destroyed, confined or otherwise disposed of, Such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation, or keeping any such goods or merchandise, or owning, possessing or controlling such building, tent, structure, substance, tank, well or excavation, or owning or possessing such animal or tree, within a time to be fixed in the order-

(i) to remove such obstruction or nuisabnce; or

(ii) to desist from carrying on, or to remove or regulate in such manner as may be directed, such trade or occupation, or to remove such goods or merchandise, or to regulate the keeping thereof in such manner as may be directed; or

(iii) to prevent or stop the construction of such building, or to alter the disposal of such substance; or

(iv) to remove, repair or support such building, tent or structure, or to remove or support such trees; or CRL.M.C.NO.2505 OF 2014 6

(v) to fence such tank, well or excavation; or

(vi) to destroy, confine or dispose of such dangerous animal in the manner provided in the said order;

Or, if he objects so to do, to appear before himself or some other Executive Magistrate subordinate to him at a time and place to be fixed by the order, and show cause, in the manner hereinafter provided, why the order should not be made absolute.

(2) No order duly made by a Magistrate under this section shall be called in question in any Civil Court. Explanation-A "public place" includes also property belongs to the State, camping grounds and grounds whom it is made, in the manner herein provided for service of a summons. Section 142: Injunction pending inquiry:- (1) If a Magistrate making an order under section 133 considers that immediate measures should be taken to prevent imminent danger or injury of a serious kind to the public, he may issue such an injunction to the person against whom the order was made, as is required to obviate or prevent such danger or injury pending the determination of the matter.

(2) In default of such person forthwith obeying such injunction, the Magistrate may himself use, or cause to be used, such means as he thinks fit to obviate such danger or to prevent such injury. (3) No suit shall lie in respect of anything done in good faith by a Magistrate under this section.

9. It is clear from this that for the purpose of attracting Section 133 of Code of Criminal Procedure, there must be existence of an imminent public danger and public nuisance. The CRL.M.C.NO.2505 OF 2014 7 counsel for the petitioner relied on Section 133 (1) (d) of Code of Criminal Procedure in support of his case which I fail to understand as to how it will be helpful to the petitioner. What is stated therein that if any building in existence is in a dangerous position causing danger to third parties, then the Magistrate can direct the owner of the building either to remove the same or make protection so that the existence of that building will not cause any danger to the third party. Even in the decision relied on by the learned counsel for the third respondent namely (State of Kerala V Chacko) 1961 KHC 25, (State V.Kochu) 1959 KHC 174, and (Balakrishnan Nambiar V.Madhavan Nambiar) 1985 KHC 100 what is interpreted as a public nuisance does not mean danger to the public as such but if it causes existences of some building or tree in a dangerorus position causes to the inmate of the neighbouring building, then that will also come within the fold of 133 of Code of Criminal Procedure.

9. Further in the decision reported in (Malathi V. State of Kerala) 2002(3) KLT SN 50 Case No.71 it has been held that:-

Public nuisance is an offence against public either by doing a thing which tends to the annoyance of the whole community in general or by neglect to do anything which the common good requires. Public nuisance is an act or omission which causes any common injury, danger or annoyance to the public or to the people in general who CRL.M.C.NO.2505 OF 2014 8 dwell or occupy the property in the vicinity. Public nuisance causes injury, obstruction, danger or annoyance to the person who may have occasion to use public right. The decisive factor is the quantum of annoyance or discomfort in contradiction to private nuisance which affects an individual. To prevent public nuisance is the object and public purpose behind S.133 Cr.P.C that if the Magistrate fails to take immediate recourse to S.133 irreparable damage would be done to the public. It is needless to point out that the powers conferred on Sub Divisional Magistrate or other Executive Magistrate specially empowered by the State is intended to be exercised only in urgent matters under exceptional and extraordinary circumstances. S.133 Cr.P.C should not be permitted to be used to wreak private vengeance and for settling private dispute between two parties. The provisions in the Section are to be sparingly used with care and caution and the Magistrate has to be on his guard.

10. So it is clear from this that section 133 of Code of Criminal Procedure cannot be permitted to be used to private vengeance and for settling private dispute between two parties.

11. It is also settled law that if a public right is denied in Section 133 proceedings, there is a duty cast on the Magistrate to conduct enquiry under Section 137 of Code of Criminal procedure regarding the existence of any public right and only if he is satisfied with the existence of public right and at the denial of public right is not bonafide, then he will have to proceed under section 138 and pass final orders on 138 of Code of Criminal procedure. In a case CRL.M.C.NO.2505 OF 2014 9 where there is no dispute regarding the existence of public right but obstruction to public right alone is denied, then as a interim measure inorder to protect that nuisance or that right interim orders under Section 142 of Code of criminal procedure can be passed by that Court. But when the public right itself has been denied and an enquiry is required to be conducted under section 137 of Code of Criminal Procedure, in such cases it is not proper on the part of the Sub Divisional Magistrate to pass an order under Section 142 of the Code of Criminal Procedure where a large amount has to be incurred by the petiitoenr to redcress the grievance of the third respondent. So under the circumsantaces, this Court feels that keeping the execution of the order under section 142 of the Code of Criminal Procedure passed by the Court below in abeyance and giving direction to the learned Sub Diviisonal Magistrate to consider the question regarding the existence of public right or not as contemplated under Section 137 of Code of Criminal procedure and thereafter proceed with the 138 of the Code and pass appropriate orders in that proceedings within a time frame will be sufficient and that will meet the ends of justice. So the petition is disposed of as follows:-

1. Implementation of Annnexure-2 order is for the time being directed to be kept in abeyance by the Sub Divisional Magistrate.

CRL.M.C.NO.2505 OF 2014 10

2. The Sub Divisional Magistrate is directed to conduct enquiry under Section 137 of Code of Criminal Procedure regarding the bonafides of the denial of public right raised by the respondent and then if he is satisfied that the denial is not bonafide, then conduct enquiry under Section 138 of the Code of Criminal Procedure as contemplated under that section and also after taking evidence as though it is a proceedings as per the summons case and then pass appropriate orders in the main proceedings itself in accordance with law as expeditiously as possible within two months from the date of receipt of this order.

With the above observations and directions, the petition is disposed of. Office is directed to communicate this order to the Sub Divisional Magistrate, Perinthalmanna immediately.

The parties are directed to appear before the Sub Divisional Magistrate Court on 16.07.2014 at 3.pm. sd/-

K.RAMAKRISHNAN, JUDGE R.AV CRL.M.C.NO.2505 OF 2014 11

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