Ramji and Another vs The State of U.P. and Others

M.B. Farooqi, J.—On the application of certain inhabitants of village Kazipur Sarag, and after obtaining report from the police concerned, the Sub-Divisional Magistrate, Mahmooda-bad, acting u/s 133, Code of Criminal Procedure, issued a notice to the applicants on 2nd of January, 1978, asking them to close down a brick-kiln set up by them in village Kazipur, else appear before him and show cause why the order should not be made absolute. The applicants appeared and contested the notice. On 10-1-1978, the learned Magistrate passed an ad-interim order u/s 142(1) restraining the applicants from running the brick-kiln. Against that order, the applicants went in revision and failed. By means of this application u/s 482, Code of Criminal Procedure, the applicants have prayed that, "that the Hon''ble Court may be pleased to quash the proceedings u/s 133, Code of Criminal Procedure or vacate the injunction order issued u/s 142, Code of Criminal Procedure or pass such necessary order which the Hon''ble Court may deem fit in the circumstances of the case."

In effect and substance, the prayer is that the order passed by the Magistrate on 2-1-1978, u/s 133, Code of Criminal Procedure, may be quashed and that if there be any difficulty in doing so, then his order dated 10-1-1978 u/s 142, Code of Criminal Procedure, only may be set aside. Obviously so, because if the order u/s 133, Code of Criminal Procedure, fails, then the order u/s 142, Code of Criminal Procedure does not survive. Against the order dated 2-1-1978, the applicants had a specific remedy by way of revision. They have not availed of it. They cannot invoke the inherent powers of the Court u/s 482, Code of Criminal Procedure for quashing that order. For the principle is well settled that Section 482 Code of Criminal Procedure cannot be pressed into service where a specific remedy is available under the Code. The principal prayer fails.

Then comes the alternative prayer concerning the order of injunction dated 10-1-1978 u/s 142, Code of Criminal Procedure. The learned Counsel for the applicants challenged the order on the following grounds:

That the order was not passed at the time of making the conditional order u/s 133(1), Code of Criminal Procedure as required by law.

That the material before the Magistrate was not sufficient to justify the order.

That the order falls outside the scope of the conditional order u/s 133 passed by the Magistrate on 2-1-1978.

Section 142(1), Code of Criminal Procedure reads:

142 (1). If a Magistrate making an order u/s 133 considers that immediate measures should be taken to prevent imminent danger or injury of a serious kind to the public, he may issue such an injunction to the person against whom the order was made, as is required to obviate or prevent such danger or injury pending the determination of the matter.

The contention of the learned Counsel is that the Magistrate can grant an injunction under this section at the time of making the conditional order u/s 133, Code of Criminal Procedure. He has no jurisdiction to grant such injunction subsequently during the pendency of the proceedings. If he does so, the order of injunction will be null and void. The argument is based upon the words, "If a Magistrate making an order u/s 133 used in this section. On this argument the learned Counsel really asks me to read this section as if the Legislature had used the words, "If a Magistrate at the time of making an order u/s 133" in it. The rules of construction would not permit me so to read it, unless the section, as it stands, is devoid of any meaning or of doubtful meaning. That it is not. Clearly the section enables the Magistrate to make an interim order of injunction at any time during the pendency of the proceedings, whether the proceeding is u/s 133 or Section 137 or Section 138, provided that he is satisfied that immediate measures should be taken to prevent imminent danger or injury of serious kind to the public. But the interim order should confine itself to preventing the particular nuisance contemplated by the conditional order u/s 133. The Magistrate has no jurisdiction to travel beyond the precincts of the conditional order and deal with a nuisance which is quite extraneous to the order. In this sense Section 142(1) is governed and controlled by Section 133. That is precisely the sense of the words, "if a Magistrate making an order u/s 133" used in Section 142(1). They are not suggestive of the fact that the interim order should necessarily be passed at the time of making a conditional order u/s 133. In this view, I am supported by a decision of the Kerala High Court in T.N. Sudhakaran and Another Vs. E.M. George and Others, in which it was held that the Magistrate can make an interim order at any stage of the enquiry, if immediate measures necessary to prevent imminent danger or injury of serious nature. No doubt the decision turns on Section 142 of the Code of Criminal Procedure, 1898. But that hardly matters, because Section 142 of the present Code is practically the same as that of 1898 Code. Therefore, first point fails.

As already stated, the Magistrate can pass the interim order at any stage of the proceedings, provided he is satisfied that the conditions set out in Section 142(1) are fulfilled. The satisfaction of the Magistrate rests upon the discretion vested in him under this section. But the discretion is a judicial discretion, which the Magistrate should exercise on the basis of the material placed before him. It is not, however, possible to lay down any inflexible rule as to the sufficiency of the material upon which a Magistrate ought to be satisfied. This must vary with the facts and circumstances of each case. But it is the Magistrate alone who can judge whether the material placed before him is sufficient for purposes of his satisfaction under this Section. In revision, the High Court will not go into the sufficiency of the material which has satisfied the Magistrate. Therefore, the second point too fails.

This brings me to the third point. Dealing with this point, the learned Counsel contended that the reasons given by the Magistrate for passing the order of injusnction materially differ from the reasons given for passing the conditional order u/s 133. That hardly matters. The requirement of law is that the interim order should deal with no other nuisance except the one contemplated by the conditional order. The present case squarely fulfills that requirement. Therefore the third point also fails.

In the result, this application fails. It is dismissed accordingly.