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SCR.A/1226/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 1226 of 2010
=========================================================
SHAHINBANU
ABDULRAJAK DADU & 2 - Applicant(s)
Versus
VASANTBHAI
C SHAH & 2 - Respondent(s)
=========================================================
Appearance
:
MR
RC JANI for
Applicant(s) : 1 - 3.
MR DIVYESH A JOSHI for Respondent(s) :
1,
NOTICE SERVED BY DS for Respondent(s) : 2,
PUBLIC PROSECUTOR
for Respondent(s) :
3,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 08/09/2010
ORAL
ORDER
Petitioners
have challenged the order dated 27.05.2010 passed by the learned
Additional Sessions Judge and the Fast Track Court, Modasa in
Criminal Revision Application No. 74 of 2008, whereby the order of
the Sub-Divisional Magistrate dated 30.06.2008 came to be affirmed.
Private
respondents herein had filed proceedings before the Sub-Divisional
Magistrate (for short SDM ) complaining that nuisance is caused
by the petitioners unit while preparing Chikki in residential
area. Learned SDM in exercise of the powers under Section 133 of the
Code of Criminal Procedure directed the petitioners to shift the unit
from the existing residential locality. Petitioners’ revision
application, as already noted, also came to be dismissed.
Counsel
for the petitioners submitted that the petitioners did not have any
opportunity to cross examine the complainant. He further submitted
that height of Chimani is already increased from 15 ft to 25 ft.
substantially mitigating the inconvenience to the neighbours. He
further stated that the petitioners would take all necessary steps to
maintain proper hygienic condition if allowed to operate the unit. He
submitted that eight workers are dependent for their livelihood on
this activity.
I
have heard learned advocate for the petitioner, learned APP for the
State and learned advocate Mr.Divyesh Joshi for the private
respondents who opposed the petition and drew my attention to the
various observations made by the learned Additional Sessions Judge.
Having
heard learned advocates for the parties, I am of the opinion that for
limited purpose and for giving an opportunity to the petitioners to
cross examine the complainant, proceedings be remanded. While
considering the remand proceedings, it will be open for the SDM to
take into account the changed circumstances of increased height of
the Chimani. Over and above, it will be also be open for the
petitioners to suggest other corrective measures and the SDM
concerned shall examine all such aspects of the matter and pass
appropriate order afresh in accordance with law.
For
the above purpose, the order dated 27.05.2010 passed by the learned
Additional Sessions Judge, Modasa is set aside and the proceedings
are remanded to SDM concerned to decide it afresh bearing in mind the
observations made in this order and such decision afresh be taken as
expeditiously as possible and preferably before 31st
December 2010. Petitioners shall not carry on any such activity till
order afresh is passed by the SDM.
Petition
stands disposed of in view of the aforesaid observations and
direction.
Direct
Service is permitted.
(
AKIL KURESHI, J. )
kailash
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