Telangana High Court
Stallion James, Hyd And Another vs Prl Secy, Home Dept., Hyd And 2 Others on 9 October, 2025
Author: N.Tukaramji
Bench: N.Tukaramji
1
THE HONOURABLE SRI JUSTICE N.TUKARAMJI
WRIT PETITION No.37441 OF 2017
O R D E R:
This Writ Petition is filed under Article 226 of Constitution of India seeking the following relief/s:-
"...to issue writ or order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the Respondent No.2 issuing the notice dated 19.9.2017 under section 133 of Cr. P.C. without inspecting the premises of the Premises of the Petitioners as well as putting lock the Snooker Parlour on 31.10.2017 running in the name of GROUND ZERO at the premises of House No. 3-6-290, Flat No. 405 and 406 Fourth Floor, Sai Tirumala Towers, Hyderguda, Hyderabad with all the permissions from the Government Departments without issuing the seizure notice or giving opportunity to the Petitioner No.1 and spoiling the business of the Petitioner No.1 as Illegal, Arbitrary, Unjust, Unconstitutional and against the Principles of Natural Justice consequently direct the Respondent No.2 withdraw the notice dated 19.9.2017 as well as open the locks directions against the said Business Establishment i.e., Ground Zero so as to enable the Petitioner No.1 to run his legalized business and pass......"
2. None appeared on behalf of the petitioners.
3. Heard Mr.M.Srinivas, learned Assistant Government Pleader for Home appearing for respondent Nos.1 to 3.
4. Learned Assistant Government Pleader for Home submits that the Executive Magistrate, upon considering the report submitted by the concerned police authorities, issued the impugned notice. Since the petitioners failed to comply with the directions contained therein, the authorities proceeded further and closed the 2 business premises. It is contended that the said action was taken solely on the ground that the business premises in question was causing public nuisance. He further pleaded that earlier, two summary trial cases had been registered against the petitioners' establishment, which were compounded upon payment of fines. Therefore, the present contention of the petitioners lacks substance and the writ petition deserves dismissal.
5. I have carefully perused the materials available on record.
6. The grievance of the petitioners is directed against the impugned notice dated 19.09.2017 issued under Section 133 of the Code of Criminal Procedure, 1973 (for short, "Cr.P.C.") by the respondent No.3.
7. It is the case of the petitioners that, acting upon the recommendation of the respondent No.3, the Special Executive Magistrate (respondent No.2) issued a notice directing closure of the petitioners' establishment, namely, a parlour, within 48 hours, on the grounds of alleged public nuisance and on the assertion that the premises is situated in a residential area. Per contra, in the 3 affidavit filed in support of the writ petition, the petitioners assert that their business operates from a duly sanctioned commercial building; that no complaints have ever been received from the general public; and that all requisite safety measures, including CCTV surveillance and restricted entry for individuals above 18 years of age, are in place. The petitioners further contend that the respondents, without conducting any prior enquiry, inspection, or proceedings as mandated under law, issued the impugned notice and sealed the premises on 31.10.2017.
8. Section 133 Cr.P.C. empowers an Executive Magistrate to pass a conditional order requiring the removal of unlawful obstructions or nuisances, or to prohibit conduct or activities hazardous to public safety, health, or convenience. It is well settled that proceedings under this section are preventive and summary in nature, not punitive. The object of the provision is to prevent imminent danger or public nuisance and to protect the public at large. However, for an order of closure of a business establishment to be justified under Section 133 Cr.P.C., the Magistrate must form an objective opinion, based on tangible evidence, that the activity in 4 question amounts to a public nuisance or poses a hazard to public safety.
9. As per Section 135 Cr.P.C., the person against whom a conditional order is made has a statutory right to appear before the Magistrate and show cause why the order should not be made absolute. Only after such hearing, and upon being satisfied that the explanation is unsatisfactory, can the Magistrate make the order absolute under Section 138 Cr.P.C. The Hon'ble Supreme Court in C.A. Avarachan v. C.V. Sreenivasan, (1996) 7 SCC 71, held that the power under Section 133 Cr.P.C. is not unfettered and must be exercised with caution, strictly within the limits prescribed by law, and only where there exists clear and convincing evidence of a public nuisance affecting the community at large.
10. In the present case, the issuance of a notice under Section 133 Cr.P.C. directing closure of the premises within 48 hours, without initiating due process as contemplated under Sections 135 to 138 Cr.P.C., appears unsustainable in law. Although Section 133 authorizes preventive measures, it does not permit closure of business premises without affording an opportunity of hearing and 5 without any finding regarding the existence of public nuisance or imminent danger to public safety. It is neither pleaded by the respondents nor disclosed in the record that any enquiry was conducted or afforded the petitioners an opportunity to show cause before sealing the premises on 31.10.2017. Such action, based solely on the police report and without adherence to the mandatory statutory procedure, is contrary to the principles of natural justice and the procedural safeguards enshrined in the Cr.P.C.
11. Mere reference to alleged disturbances caused by rowdy elements or general public nuisance in and around the snooker parlour, without any substantiated evidence or enquiry report, cannot be construed as proof of a public nuisance warranting closure. The respondents have also failed to establish that any proceedings under Sections 137 and 138 Cr.P.C. were undertaken, or that any local inspection or inquiry was conducted, as mandated by law. The statutory provisions under Sections 139 to 143 Cr.P.C. further contemplate procedural steps and penal consequences for non-compliance, which too appear to have been bypassed. 6
12. In the circumstances, the impugned notice and consequential action taken by the respondents, without adherence to due process and mandatory procedural requirements, cannot be sustained in law. Accordingly set aside. Nevertheless, the Executive Magistrate is at liberty to take appropriate action in accordance with law, if the cause of public nuisance or any other statutory ground for intervention still subsists, by strictly following the procedure prescribed under the Code of Criminal Procedure, 1973.
13. In the above terms, this Writ Petition is disposed of. No costs.
Miscellaneous Petitions, pending if any, shall stand closed.
__________________ N.TUKARAMJI, J Date: 09-10-2025 mmr