*THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU + CRL.P.NO.902 of 2009 %09-08-2010 Between: #Uppala Venkateswara Rao @ Venkateswarlu …..Petitioner And: $The State of A.P rep. by its Public Prosecutor and others …..Respondents !Counsel for the Petitioner : Sri A.V.V.S.N.Murthy Counsel for the Respondent Nos.1 & 2: Public Prosecutor Counsel for the Respondent Nos.3 to 5: Sri D.L.Pandu <Gist : >Head Note: ? Cases referred: 1. 2004(2) ALD (Crl.) 989 (SC) IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION No.902 of 2009 DATE:09.08.2010 Between: Uppala Venkateswara Rao @ Venkateswarlu …… Petitioners And: The State of A.P., rep. by its Public Prosecutor And others. …..Respondents HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION No.902 of 2009 ORDER : This criminal petition is filed questioning order dated 20.01.2009 passed by the X Additional Sessions Judge, Krishna at Machilipatnam in Crl.R.P.No.17 of 2008 confirming final order dated 23.02.2008 passed by the Tahsildar and Mandal Executive Magistrate, Pedana Mandal in R.C.B.No.242/2007 making absolute preliminary order dated 30.11.2007 passed under Section 133 Cr.P.C directing the petitioner to remove machines of flour mill, wet rice mill, chilli mill and wet grinder premisis bearing in D.No.15/152-12 of Ward No.12 of Pedana town. 2) When certain members of the public and more particularly the respondents 3 to 5 complained to the Executive Magistrate about flouring mill activity of the petitioner, the Executive Magistrate gave preliminary order under Section 133 Cr.P.C to the petitioner, received his explanation, made enquiry and passed the impugned order confirming the preliminary order issued under Section 133 Cr.P.C. It is contended by the petitioner’s counsel that the Mandal Executive Magistrate did not give reasons for his conclusion in the impugned order. It is stated in the impugned order that the Executive Magistrate had examined explanation submitted by the petitioner in detail and made enquiry which revealed that the petitioner is running the flour mill etc., in that address and that sound and air pollutions are emanating from the said milling activity in that premisis which is injurious to health of the adjacent dwellers and students and that they are facing much trouble to carry on with their studies and that running of that milling activity in that premisis is generally causing disturbance and sound pollution to the adjacent dwellers. 3) It is contended by the petitioner’s counsel that the petitioner has been paying licence fees to the Municipality for running the mill. Payment of licence fees to the Municipality by the petitioner will not clothe him with any right to conduct any milling activity resulting in injury to health and physical discomfort of the public at large. Further, O.S. No.1 of 2004 filed by the petitioner against the Municipality and the respondents 3 to 5 and decree therein also will not come in the way of the Mandal Executive Magistrate to exercise jurisdiction under Section 133 Cr.P.C. Decree of the civil Court is to the effect that the petitioner’s activity shall not be disturbed, except on due process of law. 4) The petitioner’s counsel placed reliance on Kachrulal Bhagirath Agrawal V. State of Maharashtra[1] and contended that for application of Section 133 Cr.P.C, health and physical discomfort of entire residents of the locality is the consideration and not few of the residents like the respondents 3 to 5. In that matter, originally there were 10 applicants, 5 out of whom later on had withdrawn and 5 of the original applicants only moved the High Court which held that the conditions requisite for passing an order under Section 133(1)(b) as well as final order under Section 138 Cr.P.C. were not fulfilled. The Supreme Court further observed that the lawful and necessary trade cannot be interfered with unless it is proved to be injurious to the health or physical discomfort of the community and that proceedings under Section 133 Cr.P.C are not intended to settle private disputes between different members of the public. In the case on hand, flour mill, wet rice mill, chilli powder mill and wet grinder are all necessary trades which are to be located in localities which are predominantly residential localities, where even house wives can have easy access to them at any point of time. Such trade or activity cannot be thrown out of the residential locality or thickly populated area to a place in the outskirts of the town, village or city. If such trade or activity is located in the outskirts of the town, then the purpose for which such trade or activity exists is almost lost. Convenience of general residents of the locality demands that such trade or activity should be within reach of every individual in a house, be it as a house wife or youngster in his or her teens. In Kachrulal(1 supra), the Supreme Court further observed: “The proceedings under Section 133 are more in the nature of civil proceedings than of criminal nature. Section 133 (l) (b) relates to trade or occupation which is injurious to health or physical comfort. It deals with itself physical comfort to the community and not with those which are in themselves nuisance but in the course of which public nuisance is committed. In order to bring a trade or occupation within the operation of this Section, it must be shown that the interference with public comfort was considerable and a large section of the public was affected injuriously. The word 'community' in Clause (b) of Section 133 (1) cannot be taken to mean residents of a particular house. It means something wider, that is, the public at large or the residents of an entire locality. The very fact that the provision occurs in a Chapter with "public Nuisance" is indicative of this aspect. It would, however, depend on the facts situation of each case and it would be hazardous to lay down any straitjacket formula.” 5) The activity of flour mill etc., being run by the petitioner can at best be said to cause some discomfort by way of sound pollution to adjacent building owners on either side. Certainly it is not going to cause physical discomfort or nuisance to the entire residents of the locality at large. It cannot be termed as a public nuisance. It is a public requirement or public necessity. Even the possible discomfort to adjacent owners can be minimised by the petitioner in case he chooses to update his machinery in the milling activity. It is stated that the petitioner is running his activity since the year 1999. If he had not changed the machinery with latest machinery which emit minimal or even no sound pollution, then such activity cannot be complained even by adjacent owners. 6) It is contended by the petitioner’s counsel that the Executive Magistrate did not follow the procedure prescribed by Section 138 Cr.P.C before passing final order confirming preliminary order under Section 133 Cr.P.C. As per Section 137 Cr.P.C, after passing the preliminary order under Section 133 Cr.P.C, it is incumbent for the Magistrate on appearance before him of the person against whom the preliminary order was made, to question him as to whether he denies the existence of any public right and if he denies the same, then the Magistrate shall enquire into the matter, before proceeding under Section 138 Cr.P.C. Since the case on hand is not one relating to “Public right in respect of the way, river, channel or place”, the Executive Magistrate has to proceed to comply with the requirements under Section 138 Cr.P.C. The present case involves the alleged conduct of trade or occupation by the petitioner which is stated to be “injurious to the health or physical comfort of the community”. Section 133 Cr.P.C deals with several situations warranting interference by the Executive Magistrate and those situations are mentioned in clauses (a) to (f) therein. The procedure covered by Section 137 Cr.P.C is to be followed by the Executive Magistrate in respect of denial of the public right stated in clause (a) of Section 133 Cr.P.C. The present dispute in this case relates to clause (b) of Section 133 Cr.P.C. which reads as follows: “(b) that the conduct of any trade or occupation, or the 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;” When once person against whom preliminary order under Section 133 Cr.P.C was made, appears either by himself or through advocate and denies the allegations of causing any activity which is injurious to health or physical discomfort of the community, then the Magistrate has to dispose of the matter by following the procedure prescribed under Section 138 Cr.P.C. Sub Section (1) of Section 138 Cr.P.C reads as follows: “(1) If the person against whom an order under section 133 is made appears and shows cause against the order, the Magistrate shall take evidence in the matter as in a summons- case.” Thus, in proceedings relating to Sections 133 Cr.P.C, it is incumbent for the Executive Magistrate to record evidence of witnesses produced by both the parties in the same method as in a summons case. The Magistrate cannot simply base his conclusion in the final order under Section 138 Cr.P.C by his personal enquiries or by making a panchanama during his personal visit to the place. Such personal enquiry or preparation of panchanama etc., are outside the purview of enquiry under Section 138 Cr.P.C. The Executive Magistrate was performing a judicial activity while exercising jurisdiction under Section 133 Cr.P.C. to 138 Cr.P.C. Judicial activity has to be discharged by the Executive Magistrate in a judicious manner within the framework of legal procedure prescribed by law. He cannot base his conclusions on his personal investigation. The Executive Magistrate was not “investigating” into a case, but was “enquiring” in the case. Enquiry is totally different from investigation. The enquiry contemplated under Section 138 Cr.P.C. is to be held in the same manner a judicial Magistrate holds trial in a summons case. The Executive Magistrate in his impugned order observed as follows: “Whereas, the explanation submitted by the respondent is examined in detail. Enquiry reveals that Sri Uppala Venkateswara Rao is running the Floor Mill in Door No.15/152- 12 of ward No.12 of Pedana Town with 2 H.P. Electric Motor and the Flour Mill consists Wet Rice Mill, Chilli Mill and Wet Grinder and that the sound and air pollutions that are emanating from the Flour Mill causing injurious to the health of the adjacent dwellers and the students are facing much trouble to carryout their studies. It is a fact that running the above Mill in Door No.15/152-12 of ward No.12 of Pedana Town in the midst of houses is generally causing disturbance and sound pollution to the adjacent dwellers”. 7) Examination of the petitioner herein who was the respondent before the Executive Magistrate, is not enough. Such oral examination should be reduced into writing and the deponent shall be subjected to cross-examination by the adversary. No residents of the locality and no students staying in the locality were examined by the Executive Magistrate, in the sense, their evidence was not recorded in writing muchless the petitioner was given opportunity to cross-examine those residents or students. No enquiry or inquiry as contemplated under Section 138(1) Cr.P.C was made by the Executive Magistrate. The lower revisory Court did not address these questions and it resulted in confirmation of the impugned order of the Executive Magistrate. This Court does not endorse the conclusions arrived at by the Executive Magistrate as well as the Additional Sessions Judge. Viewed from any angle, the impugned order of the Executive Magistrate cannot stand in the eye of law. 8) In the result, the petition is allowed quashing order dated 23.02.2008 in R.C.B.No.242/2007 passed by the Tahsildar and Mandal Executive Magistrate, Pedana, Krishna District, which was confirmed by the X Additional Sessions Judge, Machilipatnam in Crl.R.P.No.17 of 2008. _______________________________ SAMUDRALA GOVINDARAJULU, J August 9, 2010 Note: L.R copy to be marked (b/o)KSH [1] 2004(2)ALD(Crl.) 989 (SC)