Mohd. Gulzar S/o Shri Haji Mehboob Khan, vs State of Rajasthan through the Public Prosecutor & Ors

By way of the instant misc. petition under Section 482 Cr.P.C., the petitioner Mohd. Gulzar has approached this Court for challenging the order

dated 04.03.2015 passed by the learned SDM, Bap in Case No.05/2014 whereby, the learned Executive Magistrate accepted the complaint

submitted by the respondents under Section 133 Cr.P.C. and directed closure of the leather business allegedly being run by the petitioner in a

residential area as amounting to a public nuisance as well as the order dated 03.12.2015 passed by the learned Additional Sessions Judge, Phalodi

in revision whereby the order of the learned Magistrate was affirmed.

Learned counsel Shri D.L.R. Vyas urges that the order passed by the learned Magistrate is grossly perverse and amounts to a sheer abuse of

process of law. The learned Magistrate failed to draw the mandatory preliminary order required under Section Section 133(1) Cr.P.C.

Furthermore, the petitioner had denied the existence of any public nuisance or infringement of public right and, therefore, it was obligatory for the

Executive Magistrate to have made an inquiry as per Sections 137 and 138 Cr.P.C. and to have recorded evidence of the parties before deciding

the matter to finality. He further urges that the learned Magistrate, without considering the fact that the petitioner had been granted a licence for

running the leather business, acted in a biased fashion and directed closure of the petitioner''s premises without any justification. As per Shri Vyas,

premises in question were being used for residential purpose. The petitioner hails from Uttar Pradesh and therefore, the residents of the locality are

not happy of his having taken up residence in the said locality and therefore, they have misused the proceedings under Section 133 Cr.P.C. as a

device to oust the petitioner from his lawfully owned residential property. He thus implored the Court to accept the misc. petition and quash the

impugned orders.

Per contra, learned Public Prosecutor and Shri Bhaiya, learned counsel representing the respondents vehemently opposed the submissions

advanced by the petitioner''s counsel. They urged that as two courts of competent jurisdiction have decided the matter against the petitioner, this

Court should not feel persuaded to exercise its inherent powers so as to interfere in the well-reasoned orders passed by the courts below. Shri

Bhaiya urged that the petitioner was causing serious public nuisance by running a leather factory in a residential area which was causing serious risk

to health of the people living in the neighbouring locality and amounted to public nuisance. He thus contended that the circumstances do not warrant

exercise of inherent powers of this Court so as to interfere in the order pass by the courts below.

I have heard the arguments advanced at Bar and have gone through the impugned orders as well as the original record.

The argument advanced by Shri Bhaiya may look attractive superficially but the fact remains that if proceedings under Section 133 Cr.P.C. are

to be initiated, then the learned Executive Magistrate has to follow the mandatory procedure as laid down under Section 133 Cr.P.C. The

procedure provided by law cannot be ignored or overlooked by the Magistrate on mere ipse dixit. The manner in which the learned Magistrate

proceeded with the present case clearly indicates towards a draconian misuse of powers by the officer concerned. The complaint was filed under

Section 133 Cr.P.C. on 15.09.2014. The Executive Magistrate directed issuance of notice to the petitioner on the very same day without caring to

draw up a preliminary order as mandated by Section 133(1) Cr.P.C. The matter was then posted on 30.09.2014, 14.09.2014 and 10.11.2014.

The petitioner''s counsel, filed a vakalatnama and with the same, he placed on record of the proceedings, a certificate of registration granted to the

petitioner by the Commercial Taxes Department to run the leather business in the disputed premises. Thus manifestly, the allegation of public

nuisance was opposed by the petitioner and hence, the Executive Magistrate was required to conduct an inquiry as warranted under Section 138

Cr.P.C. before deciding the case finally. Be that as it may. Since the learned Executive Magistrate did not pass a preliminary order in terms of

Section 133(1) Cr.P.C., the final order passed by him on 04.03.2015 cannot be sustained as the same lacks the foundation of law. The learned

revisional court also failed to consider this important legal flaw in proceedings which goes to the root of the matter and vitiates the order passed by

the Executive Magistrate.

Hence, the instant misc. petition deserves to be and is hereby allowed. The order dated 04.03.2015 passed by the learned SDM, Bap as well

as the order dated 03.12.2015 passed by the learned Additional Sessions Judge, Phalodi affirming the said order are hereby quashed and set

aside. The matter is remanded to the learned Executive Magistrate who shall draw a preliminary order and decided the proceedings afresh after

providing appropriate opportunity of hearing/ leading evidence to the parties.

However, in terms of the undertaking and assurance given by learned counsel Shri D.L.R. Vyas on behalf of the petitioner, it is hereby directed

that the disputed premises shall not be used for running a leather factory till the proceedings under Section 133 Cr.P.C. are decided afresh. The

learned Executive Magistrate shall conclude the de-novo proceedings within a period of six months from the date of receipt of copy of this order.

Record be returned forthwith.