ORDER
Lakshman Uraon, J.
1. This Criminal Misc. Petition is directed against the order dated 25-11-2002, passed by the learned 1st Additional Sessions Judge, Deoghar, in Cr. Revision No. 224 of 2001, whereby and whereunder he has set aside the order under revision, holding that it is not a public nuisance, as defined under Section 133(1)(b) of the Code of Criminal Procedure (in short ‘Cr. P. C.’). The said Cr. Revision was preferred by Opp. party No. 2, against the order dated 24-8-2001, passed in Misc. Case No. 152 of 2000, whereby, the learned Sub-Divisional Magistrate, Deoghar, started a proceeding under Section 133(1)(b) of the Code of Criminal Procedure.
2. Petitioner, Bhola Prasad Deo informed in writing to the learned Sub-Divisional Magistrate, Deoghar, which resulted in institution of Misc. Case No. 152 of 2000 under Section 133, Cr. P. C. against Opposite Party No. 2, Gautam Bhattacharjee, alleging therein, inter alia, that Opposite Party No. 2, Gautam Bhattacharjee is running a Poultry Farm business in the first floor of his house, creating air pollution and nuisance to the general public of the locality. It is further alleged that he has not obtained any valid licence for running the said Poultry Farm business either from the Pollution Control Board or the Government Organisation. He being the next door neighbour, his rooms are very close to the said Poultry Form, being run by Opp. Party No. 2 (Gautam Bhattacharjee). As such, due to worst type of foul smell, coming out of the Poultry Farm, petitioner’s life has been put in a great discomfort. The learned S. D. M. found that Opp. party No. 2 was running Poultry Farm business on the upper floor of his house. The area is a residential colony and due to running of the said Poultry Farm business, foul smell is spreading, endangering their life. Considering this nuisance, he ordered to start a proceeding under Section 133, Cr. P. C., holding that under such situation, the ingredient of public place is not strictly to be followed whereas the learned 1st Additional Sessions Judge set aside that order, only on the ground that the Poultry Farm was being run on the first floor of Opp. party No. 2, namely, Gautam Bhattacharjee, which Is his private house and not a public place.
3. Assailing the said order of the learned 1st Additional Sessions Judge, passed in Cr. Revision No. 224 of 2001, learned counsel for the petitioner Bhola Prasad Deo has submitted that the learned 1st Additional Sessions Judge, Deoghar, has erred in setting aside the order, passed by the learned Sub-Divisional Magistrate, Deoghar, in Misc. Case No. 152 of 2000, ordering initiation of a proceeding under Section 133, Cr. P, C. The learned Sub-Divisional Magistrate has only passed an order for initiation of a proceeding, so that evidence may be collected before passing a final order regarding removal of the Poultry Farm, which is situated in a thickly populated residential colony in the heart of Deoghar Town. By the impugned order, the learned 1st Additional Sessions Judge, Deoghar, has closed the case without giving opportunity to the parties to adduce evidences for coming to a just decision in the case, only on the opinion that nuisance, not being a public nuisance, ingredients of public nuisance are not made out in the complaint. He further submits that without taking evidence, it cannot be said as such and hence the order of the learned 1st Additional Sessions Judge is bad in law and Is fit to be set aside. The learned Sub-Divisional Magistrate has passed the orders rightly for initiating a proceeding under Section 133(1)(b), Cr. P.C., which reads as follows :
“Conditional order for removal of nuisance : (1) Whenever a District Magistrate or a Sub-Divisional Magistrate or any other Executive Magistrate specially empowered in this behalf 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 —
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(b) that the conduct of any trade of occupation, or the keeping of any goods or merchandise, in 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; or”
4. It was further submitted that had an opportunity been given to adduce evidence, which is very much essential for adjudication of the case, the controversy as to whether it is public nuisance or not, would have been brought into record. Moreover there is no certificate, issued by the State Pollution Control Board. Without obtaining any certificate to run the Poultry Farm business, Opp. party No. 2 Gautam Bhattacharjee cannot run the said Poultry Farm in the residential colony, creating public nuisance. The learned 1st Additional Sessions Judge, Deoghar, by passing the impugned order under challenge, has killed the case at the budding stage, without appreciating the fact that unfortunately close door neighbours of the petitioner and Opp. Party No. 2, including the wife of the petitioner, have recently died, due to breathing problems. The question of causing public nuisance due to running of Poultry Farm by Opp. party No. 2 Gautam Bhattacharjee, is purely a question of fact, which can be decided by evidence, adduced by the parties. The learned 1st Additional Sessions Judge did not consider the Judgments, referred on behalf of the petitioner. On these grounds, it was urged that the impugned order dated 25-11-2002, passed by the learned 1st Additional Sessions Judge, Deoghar, is liable to be set aside. In course of his argument, learned counsel for the petitioner has relied upon the decisions, as reported in 1997 Cri LJ 928 (Pat) (Ganesh Pd. Sarawgi v. State of Bihar), AIR 1979 SC 143 : (1979 Cri LJ 59) (Gobind Singh v. Shanti Sarup) and 1997 Cri LJ 2731 (Kant) (Harihar Polyfibers v. The Sub-Divisional Magistrate, Haveri).
5. Learned counsel for the petitioner has submitted that the learned Sub-Divisional Magistrate by his order dated 24-8-2001 has rightly declared that running of Poultry Farm business by Opp. party No. 2 in the first floor of his house in the residential colony is injurious and, as such, he has passed the conditional order for closing the said Farm.
6. Refuting the arguments, advanced on behalf of the petitioner, learned counsel for Opp. party No. 2 submitted that the learned Sub-Divisional Magistrate did not appreciate the provisions, contained under Section 133, Cr. P. C. and without following the procedures, prescribed under Sections 133 and 138, Cr. P. C. came to an erroneous conclusion, converting private nuisance into a public nuisance. The petitioner Bhola Prasad Deo in paragraph No. 5 has stated that the Poultry Farm is specifically injurious to him and, therefore, it is a case of private nuisance. In view of this admitted fact, the learned Magistrate has no power to initiate any proceeding under Section 133, Cr. P. C. It is further submitted that Opp. party No, 2 Keeps a small Poultry Farm in the first floor under the Deep Litter System, which does not produce foul smell. It was also assailed that proper enquiry under Section 133, Cr. P. C. was not followed in the instant case, which is apparent from the reports of the Circle Officer and Circle Inspector, which were prepared only on the basis of presumption and no basic enquiry or evidence whatsoever was produced before the learned Magistrate. The reports of the Circle Officer and the Circle Inspector are perfunctory, which cannot be looked into and can easily be discarded. The learned Sub-Divisional Magistrate without initiating any enquiry or taking evidence of the community at large, arrived at a conclusion and passed the order of removal of the trade of Poultry Farm, even without passing any final order. The learned 1st Additional Sessions Judge has rightly passed the order in revision that nuisance alleged was not nuisance for community and no complaint by the community was ever made. In the present case, which is of private nuisance, the provisions of Section 133, Cr. P. C. cannot be maintained. While submitting these points, learned counsel for Opp. party No. 2 has relied upon the decisions, reported in AIR 1962 SC 1794 : (1963 (1) Cri LJ 14) (Ram Autar v. State of Uttar Pradesh) and 1986 Cri LJ 44 (Raj) (Mohammed Rafique v. The State of Rajasthan).
7. In the present case, on the petition of the petitioner Bhola Prasad Deo, learned Sub-Divisional Magistrate, Deoghar, ordered to initiate a proceeding under Section 133, Cr.P.C., considering the provisions, as laid down under Section 133(1)(b), Cr. P. C. and passed interim order, directing Opp. Party No. 2 (Gautam Bhattacharjee) to close the Poultry Farm business by 6-9-2001 and file show cause as to why the said order be not made absolute against him. The Poultry Farm business was being carried on by Opp. Party No. 2 Gautam Bhattacharjee (2nd party in the Court of the learned S. D. M., Deoghar) on his roof. Admittedly, it is a private place, which was observed by the learned 1st Additional Sessions Judge, Deoghar, while allowing the Cr. Revision No. 224 of 2001, preferred by Gautam Bhattacharjee. Section 133(1)(b), Cr. P. C. relates to public nuisance, which provides that the Executive Magistrate on receiving the report of a public officer or other information and on taking such evidence (if any) as he thinks fit, considers 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 should be regulated, such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation, or keeping any such goods or merchandise, of owning, possessing or controlling such building, tent, structure, substance, tank, well or excavation, or owning or possessing such animal or tree, within a time to be fixed in the order.
8. Learned counsel for Opp. Party No. 2 has much stressed the words “and on taking such evidence (if any)” as also “is injurious to the health or physical comfort of the community”. It is submitted that in the present case, learned Magistrate should have taken evidence as to whether it was injurious to the community, as provided under Section 133(1)(b), Cr. P. C., or not. In the case reported in 1986 Cri LJ 44 (Raj) (supra), it has been held that interim ex parte order, passed by the Magistrate to the effect that A be directed to remove the factory within seven days failing which it would be removed with the help of police. It was held that the orders of the Magistrate were illegal orders and were liable to be quashed. The earlier order was not a conditional order as required under Section 133. The Magistrate should have passed a conditional order that till the disposal of the application under Section 133, Cr. P. C., B should run the factory in such a manner so as not to endanger the life of the people or create public nuisance. There was no stage of passing any injunction order under Section 142 and hence the order could not be sustained. Further in a case, reported in AIR 1962 SC 1794 : (1963 (1) Cri LJ 14), the Hon’ble Court has been pleased to hold as follows :
“Whether the trade of auctioning vegetables carried on in a private house in a city caused some amount of inconvenience to the people passing by the public road outside the building because of the vegetable carts which were necessarily parked on the public road, and also produced some discomfort to the people living in the locality because of the noise caused when the auction was going on, the conduct of the business cannot be prohibited under the first or second clause of Section 133(1). The slight discomfort that may be caused to some people passing by the road or living in the neighbourhood cannot ordinarily be considered to be such as to justify action under Section 133.
Merely because the carts causing obstruction are brought in connection with the auctioning, the persons carrying on auctioning cannot be considered to be causing obstruction. The first Clause of Section 133(1), therefore, can have no application.
So far as the second Clause of Section 133(1) is concerned, the conduct of the trades of the nature in question, and indeed of other trades, in localities of a city where such trades are usually carried on, is bound to produce some discomfort, though at the same time resulting perhaps in the good of the community in other respects. If a trade like auctioning has to be carried on as necessary for the well-being of the community, some amount of noise has to be borne in at least that part of the town where such trade is ordinarily carried on. In making the provisions of Section 133 the legislature cannot have intended the stoppage of such trades in such part of the town, merely because of the “discomfort” caused by the noise in carrying on the trade.”
9. In AIR 1979 SC 143 : (1979 Cri LJ 59), the Hon’ble Apex Court held that (para 8) :
“Conditional order requiring the appellant baker to demolish oven and Chimney within specified period from the date of issue of the order is beyond the scope of the conditional order, which he had passed on December 16, 1969 by which he required the appellant to demolish the said oven and the Chimney. The final order passed by the learned Magistrate is to the effect that the appellant shall cease to carry on trade of a baker at the particular site and shall not lit the oven again. The Hon’ble Apex Court found it necessary to clarify that the proper order to pass would be to require the appellant to demolish the oven and the Chimney, constructed by him within a period of one month from today. The appellant shall not in the meanwhile use the oven and the Chimney for any purpose whatsoever.”
10. In the present case, the learned Magistrate has passed conditional order, directing closure of the Poultry Farm business by the end of 6-9-2001 from the date of passing the order dated 24-8-2001 or instead of closing the business, the 2nd party (Opp. party No. 2) was directed to file show cause as to why the said interim order be not made absolute. Thus, the order is very clear regarding initiation of the proceeding under Section 133, Cr. P. C. The Poultry Farm is being run in thickly populated area, which may prove injurious to the health of not only the individual i.e. 1st party (petitioner) but it may affect the health of nearby neighbours also. The learned Sub-Divisional Magistrate had not ordered for closure of Poultry Farm unconditionally rather he has ordered that if it is not closed, then Opp. party No. 2 should appear and file show cause as to why the order be not made absolute against him. Thus, the order regarding initiation of a proceeding under Section 133, Cr. P. C. is based on the allegations, made by the petitioner (1st party). The learned 1st Additional Sessions Judge, holding that the Poultry Farm was being run in a private residential house, dropped the initiation of the proceeding under Section 133, Cr. P. C., which was in its early stage, without giving opportunity to the other side i.e. petitioner (1st party) or Opp. parry No. 2 (2nd party) to file their respective show cause.
11. When considered the above authorities, relied upon by the learned counsel for both the parties, as also the facts of the present case, I find that the conditional order is not final order rather instead of closing the Poultry Farm, Opp. party No. 2 was given opportunity to file show cause as to why the order be not made absolute against him. Thus, the learned Sub-Divisional Magistrate has rightly acted within his jurisdiction and has passed orders in accordance with law. At this stage, quashing of the proceeding by the learned 1st Additional Sessions Judge, Deoghar, in Cr. Revision No. 224 of 2001 by order dated 25-11-2002 cannot be allowed to sustain.
12. In the result this Criminal Misc. Petition is allowed and the order dated 25-11-2002, passed by the learned 1st Additional Sessions Judge, Deoghar, in Cr. Revision No. 224 of 2001 is hereby set aside. The learned Sub-Divisional Magistrate, Deoghar, may proceed with the proceedings of Misc. Case No. 152 of 2000. As both the parties are present, they are directed to appear before the learned Sub-Divisional Magistrate, Deoghar, within a period of one month from the date of receipt/production of a copy of this order and may file their respective show cause, as ordered above.