V. Sethuraman and Another vs K.K. Natarajan and Others

Arunachalam, J.—This petition has been filed, invoking the inherent powers of this Court, u/s 482, Code of Criminal Procedure, to call for

the records in R.O.C. A8/2053/87, on the file of the Executive First Class Magistrate-cum-Revenue Divisional Officer, Palani, and quash the

proceedings initiated therein, as not maintainable and an abuse of process of Court.

Facts in brief will have to be narrated for the disposal of this petition. The Executive Magistrate had chosen to pass an order, on 25-5-1987,

purported to be a preliminary order u/s 143, Code of Criminal Procedure. The Respondents herein have been shown as Petitioners and the

Petitioners herein have been shown as Respondents, therein. The property concerned, has been described as T.S. Nos. 351, 351/2 and 352 in

South Car Street, Palani, Anna Taluk, Anna District. The contents of the order disclosed, that the Respondents herein had filed a petition through

their counsel, requesting an order u/s 143, Code of Criminal Procedure, with a direction to the Sub Inspector of Police, Palani Town, to prevent

the construction of a house in, the property referred to above. The order further shows, that the Respondents herein in their petition filed before the

Court below, had stated that the existing building in the above referred survey number, was not sound and that the Petitioners herein, with a slight

modification, had constructed a building in the same place without obtaining permission from the Palani Municipality. The Respondent had also

stated in their petition that there was danger to the lives of the neighbors due to this building, which had been directed to be demolished by the

Palani Municipality. The Petitioners, according to the Respondents, had constructed a new building without obeying instructions of the Municipal

Authorities. The Petitioners, according to the Respondent had proposed to commence a new school in the building put up, which was itself unfit for

location of the school, and if a school was allowed to run in that building, the lives of the students and the leaching staff would be in jeopardy.

Therefore, action u/s 133 and 141 Code of Criminal Procedure was prayed for.

The learned Executive Magistrate, in the order has stated, that he had heard the arguments of the counsel for the Petitioners (Respondents

herein) and was satisfied with the contentions urged on behalf of the Petitioners and, therefore, was issuing a preliminary order u/s 143, Code of

Criminal Procedure with a direction to the Sub Inspector of Police, Palani Town, to restrain the Respondents from continuing the construction of

the building to locate the school. The order also forbids strictly and enjoins the Respondents (Petitioner herein) not to repeat or continue the said

nuisance, while intimating that an enquiry would be held on 8th June, 1987.

Mr. S. Abdul Samath, learned Counsel appearing on behalf of the Petitioners contended, that there was no scope for passing a preliminary

order u/s 143, Code of Criminal Procedure, and in any event, the Executive Magistrate had exceeded his jurisdiction in directing the Sub Inspector

of Police to restrain the Respondent from continuing the construction of the building to locate a school. He also contended that the facts stated in

the impugned order, did not indicate the actual public nuisance, which was sought to be repeated or continued by the Petitioners.

Per contra, Mr. Santhanakrishnan, learned Counsel appearing on behalf of the Respondents contended that the Executive Magistrate had

committed an error in quoting the wrong section and, in fact, the impugned order must be deemed to have been promulgated u/s 142, Code of

Criminal Procedure.

I have carefully considered the contentions of either counsel. The object of Section 143, Code of Criminal Procedure appears to vest in the

Magistrate summary powers to issue an order against any person, who was repeating or continuing a public nuisance. In other words, the

repetition or continuance must be of a public nuisance, which had already been forbidden. Exercise of this power, naturally contemplates the

availability of materials on record, which shows that the Petitioners herein had already been forbidden by a competent authority from committing a

public nuisance. It appears to my mind, prima facie, that Section 143, Code of Criminal Procedure will be applicable only after there had been a

preliminary consideration u/s 133, Code of Criminal Procedure and the Magistrate had passed an order under the said section, prohibiting public

nuisance. The entire record does not show, that there was any act of public nuisance by the Petitioners which was forbidden earlier and which they

sought to repeat or continue. Directions to police, as found in the order, does not fall within the mandate of the section. On that sole ground this

petition is bound to be allowed.

However, the argument of the learned Counsel for the Respondents, require scrutiny. If, in fact, the Executive Magistrate had erroneously

passed an order u/s 143, Code of Criminal Procedure, instead of Section 142, Code of Criminal Procedure, even then it appears, that such an

order will be unsustainable u/s 142, Code of Criminal Procedure, as well. Section 142, Code of Criminal Procedure empowers the Magistrate

making an order u/s 133 to pass an order of injunction, to obviate or prevent imminent danger or injury, pending determination of the matter. The

order u/s 142, Code of Criminal Procedure can, therefore, be passed only after a proceeding u/s 133 , Code of Criminal Procedure had been

legally commenced. To initiate a proceeding u/s 133, Code of Criminal Procedure, the Executive Magistrate was bound to pass a conditional

order for removal of nuisance, as contemplated in that section. Admittedly, all that had not been done, in this proceeding. Therefore, the contention

of the learned Counsel for the Respondents had to be necessarily rejected. The proceeding initiated by the Executive Magistrate does not have the

sanction of law and on that sole ground, all further proceedings in R.O.C. A8/2053/87 on the file of the Executive First Class Magistrate cum

Revenue Divisional Officer, Palani, shall stand quashed.