Sathyanesan B. vs Sivadasan Nair & State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 29TH SEPTEMBER 2008 / 7TH ASWINA 1930 Crl.Rev.Pet.No. 3232 of 2008() -----------------------------(AGAINST THE ORDER NO.E.6248/05 OF SUB DIVISIONAL MAGISTRATE COURT, CHENGANOOR DATED 10.4.2008) ## REVN. PETITIONER/PETITIONER: SATHYANESAN.B., KARTHIKA, VISHAVERSERIKARA MURI, KURATTISSERI VILLAGE, BY ADV. SRI.P.C.SASIDHARAN RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE: 1. SIVADASAN NAIR, SYAM NIVAS, - VISHERVERSEERIKKARA MURI, KURUTTISERI VILLAGE, MANNUAR, ALAPPUZHA DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE - THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PUBLIC PROSECUTOR SRI.C.M. NAZER FOR R2 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 29/09/2008, THE COURT ON THE SAME DAY PASSED THE ## **OR DER ON CRL.M.A.9721/08 IN CRR3232OF 2008** ## **DISMISSED** ## **29/9/2008** SD/- **M. SASIDHARAN NAMBIAR, JUDGE.** Okb/- /TRUE COPY/ P.A. TO JUDGE ## **M. SASIDHARAN NAMBIAR, J.** ------------------------------------------ CRL.R.P. NO. 3232 OF 2008 -----------------------------------------Dated this the 29[th] day of September, 2008 ## **O R D E R** This petition is filed under sections 397 and 401 of Code of Criminal Procedure challenging the order passed under section 138 of Code of Criminal Procedure by Sub Divisional Magistrate, Chengannoor. Petitioner filed a complaint before Sub Divisional Magistrate, Chengannoor on 1.11.2005, based on which proceedings under section 133 of Code of Criminal Procedure was initiated. The allegation of the petitioner in the complaint was that first respondent, his neighbour, constructed a cowshed six months earlier and even at the time of construction petitioner had objected the same, but disregarding the objection, construction was completed and there are six or seven cattles kept at the shed and the smell emanating from the cowshed is so severe that petitioner cannot open the doors or windows of his house. It was also contended that mosquitoes and leeches enter the house and it adversely affects his health as well as mental peace and inspite of intervention by mediators, first respondent is not prepared for a settlement and therefore 2 CRRP 3232/08 necessary action is to be taken. The Sub Divisional Magistrate obtained the report of Village Officer and passed an order dated 8.11.2006 closing the matter finding that no nuisance is in existence as claimed by petitioner. Petitioner challenged that order before Sessions Court, Mavelikara in Criminal Revision Petition 41 of 2006. Learned Sessions Judge on perusing the records of the Sub Divisional Magistrate found that the procedure provided under the Code of Criminal Procedure, hereinafter referred to as the ‘Code’, was not complied with. It was found that when the person against whom an order is passed under section 133 of the Code appeared and denied the public right, evidence is to be recorded as in a summons case as provided under sub section 1 of section 138. As that procedure was not complied with, the order was set aside and remanded to the Sub Divisional Magistrate for proper inquiry after granting opportunity. Subsequent to the remand, a report form the Medical Officer was obtained stating that there is no nuisance caused. The Sub Divisional Magistrate thereafter passed an order on 10.4.2008 closing the proceedings based on that report. This petition is filed under section 297 and 401 of the Code challenging that order contending that the order was 3 CRRP 3232/08 passed without recording the evidence as provided under sub section 1 of Section 138 and so the order is illegal and is to be set aside. 2. Learned counsel appearing for petitioner was heard. 3. The argument of the learned counsel is that though the complaint was filed by the petitioner alone, nuisance is caused to the general public and to have unpolluted air is a public right and as it is affected by the nuisance caused by first respondent, proceedings under section 133 of the Code is maintainable. The learned counsel, relying on the dictionary meaning of “public nuisance” in Advanced Lexicon argued that an unreasonable interference with a right common to general public is a public nuisance and therefore proceedings under section 133 will lie. Relying on the decision of this Court in **Augusthy v. Varkey (1989 (1) KLT 654)** it was argued that the procedure provided under Chapter X of Code of Criminal Procedure is a summary procedure and till the civil Court decide the issue such an order would prevail and a remedy is provided under section 138 and Sub Divisional Magistrate was not justified in summarily dismissing the application, without affording an opportunity to the petitioner. It was argued that 4 CRRP 3232/08 the Medical Officer was not examined and only the Technical Assistant was examined and an opportunity was not granted to cross-examine him and in such circumstances the order is to be quashed. 4. Section 133 of the Code provide that whenever a Sub Divisional Officer on receiving report of a police officer or other information and on taking such evidence considers that any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel which is or may be used by public or that the conduct of any trade or occupation or keeping of any goods or merchandise is injurious 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, a conditional order is to be passed requiring the person causing such obstruction or nuisance or carrying such trade or occupation or keeping such goods or merchandise or owning, possessing or controlling such building, tent, structure or substance within a time to be fixed in the order to remove such obstruction or nuisance or desist from carrying on, or to remove or regulate in such a manner as may be directed, 5 CRRP 3232/08 such trade or occupation, or to remove such goods or merchandise or to regulate keeping thereof in such manner as may be directed or if he objects so to do to appear before him at a time to be fixed by the order and show cause why the order should not be made absolute. Section 137 provides that where an order is made under section 133 for the purpose of preventing obstruction , nuisance or danger to the public in the use of any way, river, channel or place, the Magistrate on the appearance before him by such person, shall question him as to whether he denies existence of any public right in respect of the way, river, channel or place, and if he does so, the Magistrate shall, before proceeding under section 138, inquire into the matter and find whether there is any reliable evidence in support of such denial of public right. Sub section 1 of section 138 mandates that if the person against whom an order under section 133 is made appears and shows cause against the order, the Magistrate shall take evidence of the matter as in a summons case. 5. Therefore it is clear that the Magistrate is competent to pass an order under clause (a) of section 133 of Code of Criminal Procedure, if he finds that any unlawful obstruction or 6 CRRP 3232/08 nuisance should be removed from any public place or way, river, or channel which or may be lawfully used by public. To pass an order under clause (b) of Section 133, he must satisfy that the conduct of any trade or occupation or keeping of any goods or merchandise is injurious to the health or physical comfort of the community and that in consequence of such trade or occupation should be prohibited or regulated or such goods or merchandise should be removed or keeping thereof should be regulated. The complaint of the petitioner is not that first respondent is conducting any trade or occupation or keeping any goods or merchandise injurious to the health or physical comfort of the community. The allegation in the complaint is only that first respondent has constructed a cowshed and the cowshed is not kept clean and consequently bad smell emanates from the cowshed and it is not possible for him to open his window or door of the house and insects like mosquitoes and leeches enter his house. This is the only allegation in the complaint filed before the Sub Divisional Magistrate. There is no case that any public right is affected or that nuisance is caused to the general public or even to any other neighbour. In such circumstances this is not a case where section 133 could have been invoked by 7 CRRP 3232/08 the learned Magistrate. The complaint raised by the petitioner is about a nuisance caused to him and his family personally and not to the general public or even to the community. In such circumstances no order under section 133 of the Code to remove the nuisance could be passed against the petitioner which alone could be made absolute with or without modification under section 138 of the Code. Therefore I do not find any reason to interfere with the order dismissing the complaint by the Sub Divisional Magistrate though for different reasons. Petitioner is entitled to approach a civil Court to seek his civil remedy to abate or prevent the nuisance if any caused . This revision petition is dismissed accordingly. ## **M. SASIDHARAN NAMBIAR, JUDGE** Okb/-