IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 13TH JANUARY 2009 / 23RD POUSHA 1930 Crl.MC.No. 4503 of 2008() ------------------------- MP.24/2006 OF THE SUB DIVISIONAL MAGISTRATE, THALASSERY .................... PETITIONER(S): --------------- CHELAKATTU BASHEER, KIZHAKKE MAVADIYIL, KANICHAR AMSOM DESOM, KOLAKKAD P.O., THALASSERY, KANNUR DISTRICT. BY ADV. SRI.C.P.PEETHAMBARAN RESPONDENT(S): --------------- 1. KOCHUTHAZHATH JOSE, KIZHAKKE MAVADI, KANICHAR AMSOM DESOM, KOLAKKAD P.O., THALASSERY, KANNUR DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.K.V.PAVITHRAN FOR R1 SRI.JAYANANDAN MADAYI PUTHIYAVEETTIL FOR R1 R2 BY PUBLIC PROSECUTOR SRI. P.A. SALIM THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 13/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 4503 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of January, 2009 O R D E R The petitioner complained to the Sub Divisional Magistrate that the first respondent, a neighbour, is running a piggery in the adjacent property causing nuisance and rendering it injurious to the health and physical comfort of the community. On that application the Sub Divisional Magistrate commenced action and a conditional order under Section 133(1)(b) Cr.P.C. was passed. The petitioner thereafter came before this Court with W.P.C. 15517 of 2007. At that stage it was informed that the respondent had filed a civil suit against the Panchayat. Reserving the option of the petitioner to get himself impleaded in that suit, the writ petition was dismissed as per Annex.A4 judgment. Annex.A5 is the plaint filed by the respondent against the Secretary of the local Grama Panchayat. In that suit it was contended that the Panchayat is not entitled to restrain the respondent from running the piggery as the respondent is not Crl.M.C.No. 4503 of 2008 2 bound to take out any licence from the Panchayat. The respondent raised a contention before the Sub Divisional Magistrate that the proceedings under Chapter X(b) is not liable to continue in view of the civil suit filed by him and the interim orders passed. As that objection was not considered, the respondent came to this Court and by Annex.A6 order this Court directed the Sub Divisional Magistrate to consider the objections of the respondent. 2. Thereupon the impugned order, Annex.A7, has been passed by the Sub Divisional Magistrate staying the proceedings under Section 133 Cr.P.C. till the disposal of the civil suit, O.S. 189 of 2006 by the Munsiffs Court. 3. The learned counsel for the petitioner submits that the order passed by the Sub Divisional Magistrate is without jurisdiction and the nature of the direction is illegal. There is no provision under which the Sub Divisional Magistrate can stay the proceedings initiated under Section 133 Cr.P.C. except under Section 137(2) Cr.P.C. The mere fact that there is a civil suit pending between the respondent and a stranger is no reason for the Sub Divisional Magistrate to drop the Crl.M.C.No. 4503 of 2008 3 proceedings initiated under Section 133 Cr.P.C., contends the learned counsel for the petitioner. 4. I find merit in the contentions of the learned counsel for the petitioner. The grievance of the petitioner is that the respondent is running a piggery and such conduct of trade/occupation is injurious to the health and physical comfort of the community. It is his prayer that such trade/occupation should be prohibited or regulated. The grievance raised by the petitioner definitely comes within the sweep of Section 133(1)(b) Cr.P.C. 5. The learned counsel for the respondent contends that under law the respondent was not obliged to take out any licence. I shall assume it to be so. Even if he is not liable to take out a licence from the local Panchayat, the respondent is certainly bound to conduct the trade/occupation (with or without licence) in such a manner as to be not injurious to the health or physical comfort of the community. If it becomes injurious to health or physical comfort of the community with or without licence, he cannot run such trade or occupation and the jurisdiction under Section 133 Cr.P.C. is certainly available to the Sub Crl.M.C.No. 4503 of 2008 4 Divisional Magistrate to interdict, restrain and regulate such trade/occupation. 6. The short question that remains is whether the pendency of the suit between the Panchayat on the one hand and the respondent on the other is sufficient reason for the Sub Divisional Magistrate to give up the proceedings under Section 133 Cr.P.C. The answer is got to be an emphatic no. The mere fact that the respondent has a dispute with the Panchayat as to whether he should take out a licence or not or whether he is entitled to a licence is no reason for the other members of the community in the neighbourhood to suffer in silence the hazardous trade/occupation endangering their health and physical comfort. In this view of the matter, I am of the opinion that the pendency of the civil suit is no reason for the Sub Divisional Magistrate to discontinue the proceedings under Section 133 Cr.P.C. 7. The counsel for the respondent contends that it is not merely the pendency of a suit. The petitioner had come to this Court and by Annex.A4 judgment the petitioner's right to get impleaded in the civil suit was reserved. But I am of opinion that the mere fact that the Crl.M.C.No. 4503 of 2008 5 petitioner did not choose to get impleaded in the suit between the respondent and the Panchayat is no reason to justify discontinuance of the proceedings under Section 133 Cr.P.C. 8. The learned counsel for the respondent further submits that in the suit inter alia a declaration has been claimed that running of the piggery in the property of the respondent does not cause any nuisance problems to the people of the locality. Admittedly it is not a representative suit. The petitioner is not by name made a party in the proceedings. In these circumstances pendency of that proceedings between the Panchayat and the respondent cannot certainly justify discontinuance of the proceedings under Section 133 Cr.P.C. 9. The learned counsel for the respondent further contends that as a matter of fact running of the piggery does not cause hazard to the health or physical comfort of the community. That question has certainly to be considered and decided in the enquiry under Section 138 Cr.P.C. and it is not necessary for me to hazard any opinion on that question now. Crl.M.C.No. 4503 of 2008 6 10. It follows from the above discussions that the impugned order under which the Sub Divisional Magistrate stayed the proceedings under Section 133 Cr.P.C. is not justified. The Sub Divisional Magistrate must proceed to conduct the enquiry under Section 138 Cr.P.C. and come to appropriate conclusion as to whether the conditional order deserves to be made absolute with or without modification. 11. This Crl.M.C. is accordingly allowed. The impugned order is set aside. The Sub Divisional Magistrate is directed to expeditiously conduct and complete the enquiry under Section 138 Cr.P.C. and pass appropriate orders. (R. BASANT) Judge tm