passed in in Case No.186/2018 (Dharamnath Mahto vs. Rampukar Mahto) in which Section 144 Cr.P.C. was initiated but was closed taking into account that a Title Suit No. 110/2010 is pending before the learned of learned Munsif, Ivth, Chapra.

22. Learned counsel for the petitioner cited a decision of Patna High Court reported in 2013 (1) PLJR 615 (Babu Saheb Raut Versus The State Of Bihar & Ors.) with specific reference to paragraph-13 which read as follows:

23. Learned counsel thus concluded stating this to be private dispute between the parties, the learned Additional Sessions Judge, VIIIth, Saran at Chapra erred in giving directions to the learned SDM, for removal of the obstruction.

24. Per contra, learned APP submits that it is bizzare to interpret Section 133 of the Cr.P.C. in such a way that an order of the learned Sub-Divisional Magistrate can be challenged before the learned District Magistrate and not in Criminal Revision.

25. He further submits that a plain reading of Section 133 of the Cr.P.C. shows that whenever a District Magistrate or a Sub-Divisional Magistrate or any other Executive Magistrate specially empowered by the State Government on receiving the report of a police officer or other information and on taking such evidence (if any) as he thinks fit considers that there is any unlawful obstructions or nuisance which should be removed, he shall take necessary steps in accordance with law.

26. He as such submits that under no circumstance, an order of the learned Sub-Divisional Magistrate can be challenged before the District Magistrate. He further submits Patna High Court CR. MISC. No.7080 of 2023 dt.16-02-2023 10/27 that there is no bar in moving before the learned Sessions Judge in revision against an order passed by the learned Sub-

Divisional Magistrate and the contention put forwarded by the learned counsel for the petitioner that Civil Court in the light of sub-section (2) of Section 133 of the Cr.P.C. cannot entertain the petition in Cr. Revision is fit to be rejected.

27. Having gone through the facts and circumstance of the case, this Court find force in the submissions put forward by the learned APP. The understanding of the learned counsel for the petitioner that against the order passed by the learned Sub-Divisional Magistrate, the opposite party no.4 should have preferred petition before the District Magistrate is without any logic. The content of Section 133 Cr.P.C. is very clear when it says that the a District Magistrate or a Sub-Divisional Magistrate or any other Executive Magistrate specially empowered by the State Government can act in the matter and as such under no circumstance the same can be construed that the order can be challenged before the District Magistrate.

28. The question that has been raised in the case is whether the learned Sessions Court could have entertained the criminal revision petition against the order of the learned SDM in the light of Section 133(2) of the Cr.P.C. Patna High Court CR. MISC. No.7080 of 2023 dt.16-02-2023 11/27

29. In this connection, the court got hold of an order of Punjab & Haryana High Court in Bheem Sain and another vs. Arjun Singh and others reported in 2009 SCC Online P & H 4532 where it has been stated as follows:

3. It is apparent from the record that the defendants- respondents had applied for the invalidation of the impugned order passed by the learned S.D.M. vide which the removal of the impugned encroachment had been ordered in terms of provision of Section 133 of the Cr.P.C. It is apparent from a perusal of the plaint (copy whereof has been shown at the time of arguments before this Court) that the factum of that order had not been called into question. It is only in the course of the presentation before this Court that the learned counsel for the plaintiff- respondent argues that the entire exercise is a political managed affair and that even the application, on the basis whereof the proceedings had been taken is not available on the record. No such averment finds mention in the plaint. A plea to that effect cannot be allowed to be raised in revision in the absence of pleadings at the trial.

4. If the plaintiff-respondent has a grievance Patna High Court CR. MISC. No.7080 of 2023 dt.16-02-2023 12/27 qua the validity of the impugned order (on an averment that provision of Section 133 Cr.P.C. had not been complied with), he may take recourse to the remedy available to him in the form of an appeal or revision. Sub Section 2 of Section 133 Cr.P.C. prima-facie appear to the filing of a suit to challenge of an order of that category. If the affected party has a grievance with regard to the validity of an order under Section 133 Cr.P.C., the challenge thereto has to be filed before the competent Court of law on the appellate or revisional side by that party. That party cannot validly file a civil suit against the order passed by the S.D.M. in the proceedings under Section 133 Cr.P.C.

5. In the light of foregoing discussion, the petition shall stand allowed. The impugned order passed by the learned Ist Appellate Court shall stand reversed. The order passed by the learned Trial Court shall stand restored.

6. However, in the circumstances of the case, it is deemed just and appropriate to order that the learned Trial Court shall dispose of the main suit itself within three months from the next date of hearing. The learned counsel for the parties state at the bar that the parties shall extend all possible cooperation in concluding their respective evidence at the trial at an early date"

4. Feeling aggrieved by this order, the present appellants preferred Criminal Revision Application No.17 of 1989 in the court of the Additional Sessions Judge, Gondia. The learned Additional Sessions Judge proceeded to reassess the evidence adduced by the parties and came to the conclusion that the learned SDM, committed error in holding that the business of the non- applicant causes public nuisance. He further held that the learned SDM ignored the evidence adduced on behalf of the non-

applicant and attached too much importance to the evidence of the applicants. The learned Additional Sessions Judge further held that the learned SDM had arbitrarily used his discretion in favour of the original applicants and, therefore, it was a fit case to interfere with the impugned order. In this view of the matter, the learned Additional Sessions Judge allowed the revision application filed by the original non- applicant and set aside the order passed by learned SDM. A Criminal Revision Application was filed by some of the original applicants before the High Court to set aside the revisional order.

Patna High Court CR. MISC. No.7080 of 2023 dt.16-02-2023 15/27

5. Originally, there were ten applicants, five of whom later on had withdrawn. Therefore, five of the original applicants moved the High Court, which came to hold that the conditions requisite for passing of order under Section 133(1)(b) as well as final order under Section 138 of the Code were not fulfilled. Accordingly it set aside order of the revisional Court."

33. The Hon'ble Apex Court thereafter dealt with Section 133 in para 9 and observed as follows:

Section 133 to 143 come under the category of "public nuisance". Section 144 comes under the category of "urgent cases of nuisance or apprehended danger" and the last category cover Section 145 to 149 relating to "disputes as to immovable property". Nuisances are of two kinds, i.e. (i) Public; and (ii) Private. 'Public nuisance' or Patna High Court CR. MISC. No.7080 of 2023 dt.16-02-2023 17/27 'common nuisance' as defined in Section 268 of the Indian Penal Code, 1860 (in short the ' IPC ') is an offence against the public either by doing a thing which tends to the annoyance of the whole community in general or by neglecting to do anything which the common good requires. It is an act or omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity. 'Private nuisance' on the other hand, affects some individuals as distinguished from the public at large. The remedies are of two kinds civil and criminal. The remedies under the civil law are of two kinds. One is under Section 91 of the Code of Civil Procedure, 1908 (in short ' CPC '). Under it a suit lies and the plaintiffs need not prove that they have sustained any special damage. The second remedy is a suit by a private individual for a special damage suffered by him. There are three remedies under the criminal law. The first relates to the prosecution under Chapter XIV of IPC . The second provides for summary proceedings under Sections 133 to 144 of the Code, and the third relates to remedies under special or local laws. Sub-section (2) of Sections 133 postulates that no order duly made by a Magistrate under this Section shall be called in question in any civil Court. The provisions of Chapter X of the Code should be so worked as not to become themselves a nuisance to the community at large. Although every person is bound to so use his property that it may not work legal damage or harm to his neighbour, yet on the other hand, no one has a right to interfere with the free and full enjoyment by such person of his property, except on clear and absolute proof that such use of it by him is producing such legal damage or harm. Therefore, a lawful and Patna High Court CR. MISC. No.7080 of 2023 dt.16-02-2023 18/27 necessary trade ought not to be interfered with unless it is proved to be injurious to the health or physical comfort of the community. Proceedings under Sections 133 are not intended to settle private disputes between different members of the public. They are in fact intended to protect the public as a whole against inconvenience. A comparison between the provisions of Sections 133 and 144 of the Code shows that while the former is more specific the latter is more general. Therefore, nuisance specially provided in the former section is taken out of the general provisions of the latter section. The proceedings under Sections 133 are more in the nature of civil proceedings than of criminal nature. Sections 133(1)(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 Sections 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.

12. Section 133 of the Code as noted above appears in Chapter X of the Code which deals with maintenance of public order and tranquility. It is a part of the heading "Public nuisance". The term Patna High Court CR. MISC. No.7080 of 2023 dt.16-02-2023 19/27 "nuisance" as used in law is not a term capable of exact definition and it has been pointed out in Halsbury's Laws of England that: "even in the present day there is not entire agreement as to whether certain acts or omissions shall be classed as nuisances or whether they do not rather fall under other divisions of the law of tour".

13. In Vasant Manga Nikumba v. Baburao Bhikanna Naidu (1995 Supp (4) SCC 54) it was observed that nuisance is an inconvenience which materially interferes with the ordinary physical comfort of human existence. It is not capable of precise definition. To bring in application of Sections 133 of the Code, there must be imminent danger to the property and consequential nuisance to the public. The nuisance is the concomitant act resulting in danger to the life or property due to likely collapse etc. The object and purpose behind Sections 133 of the Code is essentially to prevent public nuisance and involves a sense of urgency in the sense that if the Magistrate fails to take recourse immediately irreparable danger would be done to the public. It applies to a condition of the nuisance at the time when the order is passed and it is not intended to apply to future likelihood or what may happen at some later point of time. It does not deal with all potential nuisances and on the other hand applies when the nuisance is in existence. It has to be noted that sometimes there is confusion between Sections 133 and Sections 144 of the Code. While the latter is a more general provision the former is more specific. While the order under the former is conditional, the order under the latter is absolute. [See State of M.P. v. Kedia Leather & Liquor Ltd. and Ors. (2003 (7) SCC 389)].

Patna High Court CR. MISC. No.7080 of 2023 dt.16-02-2023 20/27

14. In the background of legal principles set out above, the judgment of the High Court does not suffer from any infirmity.

15. The residual question, however, is whether learned SDM could consider the suggestions, if any, given by the appellants, as to the manner in which goods can be stored or connected activities by passing order of a regulatory nature. This is permissible by the provisions itself which provide that SDM can regulate such activities. Therefore, without expressing any opinion on that matter for which material can be placed by the appellants before the learned SDM for appropriate orders in the matter, we direct that if any suggestion or alternative arrangement is brought to the notice of learned SDM it shall be considered in its proper perspective in accordance with law.

16. With the aforesaid observations, the appeal is dismissed."

34. The aforesaid paragraphs of the Hon'ble Apex Court have been elaborately dealt with to show that while affirming the original order of the learned SDM, Sakoli and rejecting the view of learned Additional Sessions Judge, Gondia, the Hon'ble Apex Court nowhere observed that the learned Sessions Court at the first instance could not have entertained the criminal revision application.

35. Thanks to the efficient staffs of the Patna High Court Judges Library, this Court also got hold of an order of Allahabad High Court in Dulichand vs Emperor reported in Patna High Court CR. MISC. No.7080 of 2023 dt.16-02-2023 21/27 AIR 1929 Allahabad 833 in which it was held that the jurisdiction of the civil court is barred only when the order is conditional and not when the same is absolute.

36. The Allahabad High Court in the said case held as follows:

37. Further, the Hon'ble Apex Court in Babulal Shivlal Upadhye & Anr. Vs. Dr. Yadav Atmaram Joshi & others reported in (1994) 1 Mah LJ 256 held as follows:

38. From the aforesaid orders, it can be safely construed that Section 133(2) of the Cr.P.C. does not put any bar in challenging the absolute order of the learned SDM and the learned Additional Sessions Judge, VIIIth, Saran at Chapra rightly took up the Criminal Revision application.

39. Having clarified sub-section (2) of Section 133 Cr.P.C., so far as the facts of the case is/are concerned, it emerges that the learned Additional Sessions Judge,IVth had two reports before it submitted by the Circle Officer, Manjhi as also the Station Head Officer, Manjhi according to which:

40. After considering the aforesaid report, the learned Revisional Court held that:

41. It is worth nothing that the petitioner in the Title Suit No.110 of 2018 (for permanent injunction of the passage) had preferred application for temporary injunction against use of the passage which was rejected by the learned Munsif, Ist, Saran, Chapra on 16.11.2018 holding that indirect relief cannot Patna High Court CR. MISC. No.7080 of 2023 dt.16-02-2023 27/27 be granted which takes place of direct relief.

42. Having detailed out the facts leading to the passing of the order dated 02.12.2022 by the learned Additional Sessions Judge, VIIIth, Saran at Chapra in Cr. Revision No.105 of 2022 as also clarifying sub-section (2) of the Section 133 of the Cr.P.C. which in the considered view of the Court does not put any bar on the Revisional Court to take up the petition against the order passed by the learned S.D.M., there is no error in the order in question.

43. The petition lacks merit and is accordingly dismissed.

(Rajiv Roy, J) Prakash Narayan /-