Crl.Misc.No.M-37400 of 2007 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Misc.No.M-37400 of 2007. Date of Order: August 02, 2010. Brij Mohan .. Petitioner VERSUS State of Haryana and another. .. Respondents * * * CORAM: HON'BLE MR.JUSTICE M.M.S.BEDI * * * PRESENT Mr.N.C.Kinra, Advocate, for the petitioner. Mr.S.S.Mann, Sr., DAG., Haryana. Mr.Deepak Sharma, Advocate, for respondent No.2. M.M.S. BEDI, J. (ORAL) Petitioner has invoked the inherent jurisdiction of this Court under Section 482 Cr.P.C., and prayed for quashing of conditional order dated 22.12.2005, passed by the Sub Divisional Magistrate, Ambala, Annexure P-1, and order dated 22.12.2006, Annexure P-2, whereby the conditional order was made absolute and the judgment dated 31.05.2007, Annexure P-3, passed by the Additional Sessions Judge, Ambala, confirming the orders passed by . . . 1 Crl.Misc.No.M-37400 of 2007 the Sub Divisional Magistrate. Brief facts, relevant for the adjudication of the present petition, are that respondent No.2, Sunder Lal filed a written complaint dated 11.05.2005 to the police against the petitioner for removal of a septic tank alleging that the petitioner has constructed a septic tank in the street which emits bad smell 24 hours. There are chances of spread of diseases. The drains on account of tank are also lying blocked and water does not flow smoothly. A request was made to get the tank closed. On the basis of the complaint, ASI Krishan Lal of Police Station, Mullana, visited the spot where the residents of the locality met him. The petitioner was also called on the spot. The said ASI found that the water in the drain stood blocked on account of the tank. He made enquiry from the persons present and was told that the pipeline had been laid adjacent to the pit of septic tank and there were chances of contamination of water. ASI Krishan Lal presented a Calendra under Section 133 Cr.P.C. Vide order dated 12.12.2005, the Sub Divisional Magistrate, Ambala, passed a conditional order against the petitioner refraining him from using the tank and issued a show cause notice why the conditional order should not be made absolute. The said conditional order was made absolute vide order dated 22.12.2006, Annexure P-2. Before passing the order, Annexure P-2, the learned Magistrate had permitted both the parties to lead their evidence. The complainant himself appeared as witness and examined Jai Chand his son, Mohan Lal, Om Parkash, Des Raj Numberdar, . . . 2 Crl.Misc.No.M-37400 of 2007 Satnam Singh, Ramesh Kumar and Jagir Singh. These witnesses stated that the petitioner was resident of village Bihra and had constructed a septic tank (latrine tank) in the Gali in front of his house. The said tank is measuring 6' X 7' and width of Gali is 7 feet. The water pipeline also passes near the said tank. The discharge from the septic tank accumulates in the Nalli and creates a foul smell which is injurious to the health besides this septic tank creates hindrance in the Gali. A report of Block Development and Panchayat Officer was also proved. On the other hand, the petitioner examined himself besides examining Sham Lal, Arun Kumar and Santosh Rani. The said witnesses tried to establish that the petitioner had constructed the septic tank upon his own Chabutra on the Gali and that the tank was constructed with the consent of the Gram Panchayat and the residents of locality in the year 2002 and that there was neither any foul smell nor any nuisance caused on account of the septic tank. They stated that the water runs freely in the Nalli on both sides of the Gali and that there was no apprehension of spreading of any disease or inconvenience. It was stated that the Gali was 10 feet in width. After considering all the facts and circumstances of the case, the Sub Divisional Magistrate, vide order dated 22.12.2006, made the conditional order dated 22.12.2005, absolute. The petitioner aggrieved by the order passed by the Sub Divisional Magistrate, filed a revision petition which was decided by the Additional Sessions Judge, Ambala on 31.05.2007, on the . . . 3 Crl.Misc.No.M-37400 of 2007 ground that the order passed by the Sub Divisional Magistrate, under Section 133 Cr.P.C., was based upon conjectures and surmises and that the Executive Magistrate had wrongly allowed the parties to lead their evidence by way of affidavits which was not permissible under Section 133 Cr.P.C. The evidence was to be recorded as per the summons case. It was also argued that there has not been any encroachment of any public street and the septic tank had been got constructed by the petitioner on his own property. The revisional Court again re-appreciated the evidence produced by both the parties. Relying upon the statement of CW.9 Roshan Lal, BDPO, Shaha, who proved his report EX.CW1/D, indicating that on the spot inspection, it was found that septic tank was illegally constructed by the petitioner and was a cause of great nuisance in the public street. The order passed by the Magistrate under Section 133 Cr.P.C. was confirmed. Shri N.C.Kinra, learned counsel for the petitioner has vehemently contended that it is an abuse of process of the Court to allow an application under Section 133 Cr.P.C., on the basis of affidavits. He placed strong reliance on the judgment in case Banta Singh Vs. Sohawa Singh and others, 1976, Crl.L.J., 1448, to contend that it is not permissible to adduce evidence by way of affidavits in proceeding under Section 133 Cr.P.C. and the Magistrate is bound to record the evidence in the same manner as it is recorded in summons case. He also relied upon Ram Lal Vs. State of Haryana, 2002(2), Criminal Court Cases, 689 (P&H), . . . 4 Crl.Misc.No.M-37400 of 2007 holding that Section 139 of the Criminal Procedure Code, requires a Magistrate to take evidence in a case under Section 133 Cr.P.C. in the manner as in a summons case and violations of the provisions of Section 138 (1) Cr.P.C., would vitiate the entire proceedings under Section 133 Cr.P.C. It was argued by Mr.Kinra that there is no sufficient material produced on the record to establish that the septic tank has been raised by the petitioner on a public street. The said constructions has been raised on the personal Chabutra of the petitioner on a private Gali. On the other hand, counsel for the respondent has argued that after the dismissal of revision petition by the Additional Sessions, Ambala, the jurisdiction under Section 482 Cr.P.C., cannot be invoked by the petitioner as it will tantamount to second revision petition and it was argued that the septic tank has been raised by the petitioner on the public street which creates a great nuisance in the locality and that the order passed by the Sub Divisional Magistrate, is an appropriate order. With the assistance of the counsel for the parties, I have gone through the statements of the witnesses of the complainant which have been produced in the shape of affidavits but peculiar feature of this case is that the witnesses who have furnished the affidavits, have themselves appeared as witnesses and have been subjected to cross-examination. It is not a case where the evidence has been taken in the shape of affidavits of both the parties . . . 5 Crl.Misc.No.M-37400 of 2007 and matter having been decided without examination. The mode adopted by the Sub Divisional Magistrate, is that the examination-in- chief has been taken in the shape of affidavit of the witnesses and the witnesses have been subjected to cross-examination. A close scrutiny of the statements of witnesses indicate that the complainant-respondent appeared as CW.1 and produced his affidavit Ex.CW1/A. He was actually cross-examined after deferring his cross-examination, on 10.02.2006. Witness Jai Chand CW.2, produced his affidavit EX.CW2/A. His cross- examination was deferred but he was not produced for cross- examination. Mohan Lal CW.3, produced his affidavit EX.CW3/A, but he was also not produced for cross-examination. Similarly, CW.4, Om Parkash produced his affidavit EX.CW4/A. His cross- examination was deferred on 10.02.2006, but he was not produced for cross-examination. CW.5 Des Raj produced his affidavit EX.CW.5/A and he was cross-examined. CW.6 Satnam Singh produced his affidavit EX.CW6/A. He was actually cross-examined on 12.04.2006. CW.7 Ramesh Chand was examined-in-chief on 21.03.2006. He was cross-examined on 12.04.2006. CW.8 Jagir Singh appeared as a witness and was cross-examined on 05.05.2006. Roshan Lal CW.9, produced his affidavit EX.CW9/A. His examination-in-chief was recorded and he was cross-examined on 05.07.2006. Affidavits of CW.2 Jai Chand, CW.3 Mohan Lal and CW.4 Om Parkash cannot be read in evidence and their affidavits are required to be rejected but so far as CW.1, Sunder Lal and CW.6 . . . 6 Crl.Misc.No.M-37400 of 2007 Satnam Singh are concerned, though the said witnesses have produced their affidavits but they were thoroughly cross-examined by the counsel for the petitioner. So far as the statements of CW.7, CW.8 & CW.9, are concerned, the said witnesses having been cross-examined, it cannot be said that their examination-in-chief in the shape of affidavits would be rejected. A careful perusal of the judgments in Banta Singh and Ram Lal's cases (supra) indicates that the witnesses of the complainant in proceedings under Section 133 Cr.P.C., had produced their affidavits but no cross-examination had been conducted and the Magistrate had decided the proceeding on the basis of the affidavits. Such an approach was held to be a serious illegality. The statement of CW.9 Roshan Lal, BDPO, regarding his report EX.CW1/D, has been relied upon by the Magistrate. The said report was prepared by the BDPO by visiting the spot on 17.11.2005. He was deputed to prepare a report. The said report is permissible to be taken in consideration as under Section 139 Cr.P.C., a Magistrate for the purpose of an enquiry under Section 138 Cr.P.C., direct a local investigation to be made by such person as it thinks fit. The statement of the BDPO and his report has rightly been taken into consideration by the Magistrate as well as the revisional Court. There is no controversy regarding the law laid down in Banta Singh and Ram Lal's cases (supra) that it is not permissible to adduce evidence by way of affidavits in the proceedings under Section 133 Cr.P.C. Where the deponent . . . 7 Crl.Misc.No.M-37400 of 2007 produced his affidavit in the shape of examination-in-chief and offers himself for cross-examination and is cross-examined and the production of affidavit is not opposed and is rather accepted, in such circumstances, the challenge cannot be made regarding the illegality in recording the evidence. It is settled principle of law that an affidavit is a statement or a declaration in writing or on oath affirmed before a person having authority to administer an oath or affirmation. Ordinarily the evidence of the witnesses shall be taken orally in an open Court in presence and under the personal direction or superintendence of the Judge. An affidavit differs from deposition. An affidavit is taken ex parte but in case of deposition in the Court, the opposite party has always an opportunity to cross-examine the deponent but when a witness offers his cross-examination by way of affidavit and offers himself for cross-examination under the directions of the Court, the affidavits read with cross-examination can be treated as evidence for adjudication of proceedings under Section 133 Cr.P.C. In the interest of justice, I have carefully considered the entire evidence again by ignoring the evidence of CW.2 Jai Chand, CW.3 Mohan Lal and CW.4 Om Parkash and I am of the opinion that evidence of CW.1 Sohan Lal and CW.6, Satnam Singh and the examination of CW.7 & CW.8, are sufficient enough to establish that the petitioner has raised a septic tank on a public street which is a cause of nuisance. . . . 8 Crl.Misc.No.M-37400 of 2007 No ground is made out for interference in the orders passed by the Courts below. Dismissed. (M.M.S.BEDI) JUDGE August 02, 2010. rka . . . 9