Delhi District Court
(Judgment) Rambir vs State on 8 January, 2018
(Judgment) Rambir Vs State
CR no. 88/17
IN THE COURT OF SHRI PANKAJ GUPTA: ADDL. SESSIONS JUDGE (FTC)
(NORTH-WEST): ROHINI COURTS: DELHI
CR No. 88/17
CNR No.: DLNW01-004736-2017
Rambir
S/o Sh. Devi Singh
R/o: 1405, Bazar Panna
Village Karala, New Delhi.
...........Revisionist/Petitioner
Vs
State ...........Respondent
Date of filing of revision : 11.05.2017
Date on which judgment reserved : 08.01.2018
Date on which judgment pronounced : 08.01.2018
JUDGMENT
1. The petitioner preferred the present revision petition, being aggrieved by the conditional order dated 09.05.2017 under section 133 of Code of Criminal Procedure, 1973 (CrPC) (the impugned order) passed by Sh. Santosh Kumar Rai, SDM, Rohini, Delhi (the SDM) in respect of Truck no. HR-46-E-7153 of which the petitioner is the registered owner.
2. Brief facts relevant for disposal of the present petition are that on 04.05.2017 at about 8.00 pm, the Truck no. HR-46-E-7153 (hereinafter referred to as the "subject truck") was plying on near Kanjhawala Road, near PS Begum Pur. On inspection, the subject truck was found heavily loaded with fresh rodi and its weight appeared to be 43.9 tones against the total ladel weight of 25 tones as prescribed. Accordingly, the subject truck was handed over to SHO PS Begum Pur for its custody till further order. That way, the subject truck with excess load was a running time bomb and might result in loss of life of the common public. Further, the subject truck like other excessive loaded trucks was the major reason Page no. 4/ 4 (Judgment) Rambir Vs State CR no. 88/17 for the accidents and caused a large public nuisance. Therefore, it was necessary to take step in public interest to stop that menace of plying of over loaded truck to insure public safety and to remove unlawful constructions and public nuisance. In the given circumstances, the petitioner was called upon under section 133 CrPC to stop that practice of plying the over loaded truck with immediate effect. The petitioner was also directed to submit the list of all the truck on owned or plied by him; and to furnish personal bond of Rs. 50,000/- with two sureties of Rs. 25,000/- each in compliance of the said order or to show cause as to why the said order be not made absolute. Being aggrieved by the said order, the petitioner preferred the present appeal.
3. Ld. Addl. PP entered into appearance on behalf of the respondent and addressed the arguments straightway in support of the impugned order.
4. I have heard the counsel for the petitioner and Ld. Addl. PP for the State and have perused the material available on record including record of the SDM.
5. Counsel for the petitioner pleaded that the SDM erred in exercising the jurisdiction u/s 133 Cr.PC by completely bypassing the provision of Motor Vehicle Act (MV Act). Further, the SDM was not the competent authority to take the action for the violation of any condition under the MV Act which is a complete code in itself.
6. On the contrary, Ld. APP pleaded that the SDM was very much competent to take the action u/s 133 CrPC and has rightly done so.
7. Main grievance of the petitioner is that the SDM had no power to exercise the jurisdiction u/s 133 CrPC for the alleged violation once specific provisions are provided under the MV Act.
8. It is evident from the record that the petitioner was the registered owner of the subject truck and was having the valid permit to ply the subject truck on the date of the incident. As per order dated 17.05.2017, the subject truck was seized on 05.05.2017, though, in the conditional order the date is mentioned as 09.05.2017.
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9. Counsel for the petitioner has assailed the impugned order on the ground that the same is based on conjecture and surmises and the observation that the subject truck was causing any public nuisance is completely imaginary. He also pleaded that the petitioner was plying the subject truck under a valid 'National Permit' and even if it was overloaded, the same would have attracted the provisions of MV Act. Therefore, the SDM erred in invoking his power u/s 133 CrPC.
10. Section 133 falls in Chapter X of CrPC, which deals with maintenance of the public order and tranquility. It empowers a District Magistrate or Sub Divisional Magistrate or any other Executive Magistrate to make a conditional order for the removal of a public nuisance, if he is satisfied that such order should be made, on the report of a public officer, or other information, and such evidence (if any) as the Magistrate thinks fit. Public nuisance has been defined in Section 268 IPC. It is an act or omission which causes any common injury, obstruction, danger or annoyance to the public or to the public in general who dwell or occupy a property in vicinity. The object and purpose behind Section 133 of the Code is essentially to prevent public nuisance and involves a sense of urgency in the sense that if the magistrate fails to take recourse immediately, irreparable injury would be done to the public. This section can be invoked only if there is emergent and imminent danger to health and physical comfort of the community for which speedy and immediate prevention is necessary. This section has no application to anticipated obstruction or nuisance. Reliance is placed upon the judgment titled as "Kachrulal Bhagirath Agrawal v. State of Maharashtra", reported in AIR 2004 SC 4818, wherein Hon'ble Supreme court held that section 133 CrPC does not deal with the potential nuisance and applies only when the nuisance is in existence and that it can be invoked only in cases of emergency. Further, before exercising his power under Section 133 CrPC, the magistrate must record his prima facie satisfaction not only with regard to existence of public nuisance but also the necessity of its immediate removal. Meaning thereby, there must be some material or evidence on the basis of which he records his satisfaction.
11. A perusal of the record reveals that except the weight slip in respect of the subject truck issued by Shri Vishnu Dharam Kanta to show that weight the loaded truck was 43.9 Page no. 4/ 4 (Judgment) Rambir Vs State CR no. 88/17 tones at the relevant time, there is no other material on the basis of which the SDM could have recorded the satisfaction regarding the existence of public nuisance. Therefore, it can be held that the SDM had proceeded to exercise his power under Section 133 CrPC merely on the assumption that plying the overloaded truck in excess to the prescribed laden weight might cause public nuisance. Since Section 133 CrPC has no application to an anticipated nuisance, the SDM clearly fell in error in passing the impugned order dated 09.05.2017.
12. In view of the foregoing discussions, the impugned order dated 09.05.2017 passed by the SDM u/s 133 Cr.PC is set aside. TCR alongwith copy of the order be sent to the concerned court.
13. Revision file be consigned to Record Room.
Announced in the open court on this 8th day of January, 2018.
(Pankaj Gupta) ASJ-FTC, North-West Rohini: Delhi.
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