Delhi District Court
Jai Bhagwan vs The State (Govt. Of Nct Of Delhi) on 21 August, 2017
IN THE COURT OF SH. RAKESH KUMAR1
ADDL. SESSIONS JUDGE/SPECIAL JUDGE (NDPS)
WEST DISTRICT, TIS HAZARI COURTS, DELHI
Criminal Revision No.364/2017
Jai Bhagwan,
S/o Sh. Ram Singh,
R/o Runawas (142),
Jhajjar, Haryana - 124106. ......Revisionist.
Versus
The State (Govt. of NCT of Delhi)
Sub Divisional Magistrate (Punjabi Bagh) .....Respondent.
Date of filing of petition. : 16.08.2017.
Date of Arguments. : 21.08.2017.
Date of Order. : 21.08.2017.
:J U D G M E N T:
1. Revisional jurisdiction of this Court has been invoked by revisionist herein challenging orders dated 29.07.2017 passed by Sh. Santosh Kumar Rai, Ld. Sub Divisional Magistrate, Punjabi Bagh, Delhi vide which invoking the provisions of Section 133 Cr.P.C, a conditional order was passed with respect to vehicle bearing registration no.HR63B5749.
2. Invoking Section 133 of Code of Criminal Procedure, Ld. Sub Divisional Magistrate had passed the impugned order, stating that truck bearing registration number HR63B5749 which is registered in the name of present revisionist, was being plied on Main Rohtak Road, Near SDM (Punjabi Bagh) Office, Nangloi, Delhi, on the intervening night of 28.07.2017 - 29.07.2017, in excess to the laden weight, as specified in registration certificate issued by the concerned transport authority. The said truck was ordered to be impounded by Ld. SDM and was directed to (Jai Bhagwan Vs. State) (CR No.364/2017) Page no.1 of pages 7 be kept in custody of SHO PS Nangloi.
3. Feeling aggrieved by this order of invoking Section 133 of Code of Criminal procedure, the present revision petition has been preferred.
4. Subsequent to the filing of the revision petition, notice of the same was given to respondent State.
5. Pursuant to service of notice, Sh. K .D. Pachauri tendered his appearance on behalf of respondent State.
6. I have given my thoughtful consideration to the rival contentions advanced and have perused the relevant provisions of Code of Criminal Procedure as well as Motor Vehicle Act. I have also gone through the Revision Petition as well as the impugned order and other relevant material placed on record.
7. Administration of Criminal Justice System rests on sound and well established legal principles. We are governed by a "Codified Law"
wherein all the procedural aspects have been duly codified in Code of Criminal Procedure. The object of the Code is to ensure that the subjects of society should get a fair trial on certain well established and well understood lines, in accordance with the notions of Principles of Natural Justice. These procedures have been duly codified in the Code, so as to have a uniform applicability. It is expected of every court or law enforcement agencies, entrusted with responsibilities of adjudication as well as of maintenance of law and order in the Society, to follow the duly prescribed procedure for any matter falling in its jurisdiction, and not to come up with different procedures for different cases, so as to spring surprises for the subjects of society.
8. To ensure the same, scope and jurisdiction of every authority has been duly defined, calling upon the authority to exercise the same within the prescribed domain.
9. It is pertinent to mention that the scope of this Court, in its revisional jurisdiction is required to be exercised so as to find out as to (Jai Bhagwan Vs. State) (CR No.364/2017) Page no.2 of pages 7 whether some injustice has resulted due to impugned order passed by Ld. SDM. It is further required to be seen, as to whether Ld. SDM while passing the impugned order has acted, contrary to the well established principles of Law, or on presupposition of certain facts which are not in existence.
10. Keeping the above mentioned principles in the backdrop, the contentions advanced on behalf of the parties have been considered in the light of material on record.
11. The object and purpose for which Section 133 was incorporated in Criminal Procedure Code is to prevent "Public Nuisance". Nuisance is an inconvenience which materially interferes with ordinary physical comfort of human being which is not capable of exact meaning. It may be public or private. Until and unless the nuisance complained of is a public nuisance, the Magistrate cannot issue an order under s.133 Cr.P.C
12. Public nuisance has been defined in Section 268 of IPC as per which :
Section 268 Public Nuisance - A person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes 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 mus necessarily cause injury, obstruction, danger or annoyance to the persons who may have occasion to use any public right.
A common nuisance is not excused on the ground that it causes some convenience or advantage.
13. Meaning thereby, it has to be an act or omission which causes any common injury, obstruction, danger or annoyance to the public in general, who dwell or occupy properties in the vicinity of such cause(s) of nuisance.
14. It is for removal of these causes of "nuisance" that provisions of (Jai Bhagwan Vs. State) (CR No.364/2017) Page no.3 of pages 7 Section 133 of Code of Criminal Procedure can be invoked. The Legislature in its wisdom had enumerated various kinds of nuisance, to prevent which its provisions are required to be invoked by the Executive Magistrate. These provisions are as under:
(i) The unlawful obstruction or nuisance to
(a) any way, river or channel which is or may be lawfully used by the public;
(b) any public place,
(ii) The conduct of any trade or occupation or the keeping of any goods or merchandise which is injurious to the health or physical comfort of the community.
(iii) The construction of any building or the disposal of any substance as is likely to occasion conflagration or explosion.
(iv) Any building, tent or structure being in such condition that it is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by.
(v) Any tank, well or excavation adjacent to any public way or public place remaining unfenced.
(vi) Any dangerous animal requiring destruction, confinement or disposal.
15. Once the Executive Magistrate is satisfied regarding existence of the public nuisance, then the mode and procedure required to be adopted by Ld. SDM is enumerated in Sections 133 to 138 Cr.P.C. Composite reading of these provisions delineates the method require to be adopted by Ld. SDM. The same is delineated as under:
"Procedure under Section 133 - 138 : In a case of public nuisance, the procedure before the Magistrate has the following stages:
(I) A Magistrate, as specified in subsection (1) on receipt of a report of a Police Officer or other information to the effect that a nuisance of the kind mentioned in Clauses (a) - (f) of that Sub - Section (1) exists.
(II) On being so satisfied, he issues a conditional order requiring the person causing such nuisance (Jai Bhagwan Vs. State) (CR No.364/2017) Page no.4 of pages 7
(a) to remove the nuisance within a time fixed in the order, or,
(b) if he objects to do so, to appear before him or some other Executive Magistrate subordinate to him, to appear at a time and place fixed by the conditional order, to show cause why the conditional order should be made absolute. (III) If, upon service of the conditional order, the person does neither perform the act required by the conditional order nor appear and show cause; the order shall be made absolute, (IV) If, however, the person appears and denies the existence of any public right as alleged and objects to do the act required by the conditional order, the Magistrate shall make inquiry, as required by s.137.
V. If, upon making such inquiry, ( a) the Magistrate is satisfied that the conditional order is proper, he shall make the order absolute with or without modification,
(b) the Magistrate is not satisfied that the conditional order is reasonable and proper, no further proceeding shall take place.
16. Meaning thereby that for embarking upon to adopt the above mentioned procedure, the prerequisite or sine qua non is the existence of "Public Nuisance" to the satisfaction of Ld. SDM. If none of the clauses of Sub Section (1) of Section 133 Cr.P.C is attracted in a given case, then Ld. SDM is statutorily not required to proceed under this provision, whatever be the inconvenience caused by the alleged act. In such an eventuality, the remedy for such an act lies elsewhere and not under section 133 of Cr.P.C.
17. It is established principle of adjudication of Criminal Justice System that whenever a particular procedure and remedy is "prescribed", for redressal of any grievance, then all other procedures and remedies are "proscribed".
18. Hon'ble Apex Court in case titled "K.B.Aggarwal vs. State of Maharashtra" reported as AIR 2005 SC 4818, had ordered that the (Jai Bhagwan Vs. State) (CR No.364/2017) Page no.5 of pages 7 provisions of Section 133 Code of Criminal Procedure are to be invoked only in cases of emergency. Hon'ble Apex Court had laid that:
"there must be danger to property and consequential nuisance to the public. It does not deal with the potential nuisance and applies only when the nuisance is in existence.
........(emphasis supplied)
19. Perusal of the impugned order reveals that the same has been passed by Ld. SDM on the assumption that by plying the overloaded truck in excess to the prescribed laden weight, some public nuisance might ensue. There is nothing on record to show that there was any previous complaint from any quarter regarding existence of this public nuisance giving rise to any cause of action for Ld. SDM to invoke these emergent provisions of passing of conditional order. Thus, at the time when impugned order was passed, there was no public nuisance in existence, which in interest of general public, was required to be immediately removed by invoking this provision.
20. Plying of truck in excess to the prescribed laden weight mentioned in the registration certificate issued by the concerned transport authority, is an offence under Motor Vehicle Act, for which in terms of section 113 and 114 of Motor Vehicle Act, specific action is prescribed as per the mode and manner mentioned therein. Apart from that the good / articles so transported through the truck in question, if are in violation of any rule / regulation or licence and constitutes a 'punishable offence' under any other statute for time being in force, the action can and should be initiated under that relevant provision of law.
21. Needless to say that in case, the revisionist violates any provisions of law which is a punishable offence under any statute in force, then the law enforcement agencies as per the prescribed rules and regulations, are at liberty to initiate appropriate proceedings against him.
22. In view of the above discussion, the impugned order dated (Jai Bhagwan Vs. State) (CR No.364/2017) Page no.6 of pages 7 29.07.2017 passed by Ld.SDM invoking Section 133 of Code of Criminal Procedure is set aside as the same in the facts and circumstances cannot stand, being contrary to the established principles of law.
23. The vehicle in question be released immediately to the registered owner, after getting the same weighed as per the norms, subject to his furnishing an undertaking before Ld.SDM that he shall not ply the same in contravention to the provisions of Motor Vehicle Act, overloading the same in excess to the prescribed laden weight.
24. Copy of this order be sent to the concerned Trial Court.
25. Revision file be consigned to Record Room after completion of necessary formalities.
(Announced in open Court (RAKESH KUMAR1)
on 21st August, 2017) Addl. Sessions Judge/Special
Judge (NDPS) (West)
Tis Hazari Courts, Delhi
(Jai Bhagwan Vs. State) (CR No.364/2017) Page no.7 of pages 7