IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 3224 of 2006(C)
1. JOSE, S/O.POULOSE,
... Petitioner
Vs
1. REVENUE DIVISIONAL OFFICER,
... Respondent
2. JOHNSON, S/O.LAZAR,
3. VARGHESE, S/O.KUNHUVAREED,
4. STATE OF KERALA, REP. BY PUBLIC
For Petitioner :SRI.T.M.CHANDRAN
For Respondent :SRI.P.VIJAYA BHANU
The Hon'ble MR. Justice V.RAMKUMAR
Dated :04/07/2007
O R D E R
V. RAMKUMAR, J.
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Crl.R.P. No. 3224 OF 2006 C
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Dated this the 4th day of July, 2007
O R D E R
In this revision filed under section 397 read with section 401
Cr.P.C. the revision petitioner challenges the order dated 14.8.2006
(styled as a notice) passed by the 1st respondent Revenue Divisional
Officer/Executive Magistrate, Thrissur, directing the revision petitioner to
discontinue the piggery conducted by him in his property situated in
Kaiparambu Grama Panchayat without a licence and in a manner
causing public nuisance to the residents of that locality.
2. As per a mass petition signed by respondents 2 and 3 and
others the Sub Divisional Magistrate, Thrissur was moved on 9.5.2006
alleging that the revision petitioner herein and others were rearing more
than 100 porks and pigs in their property in an unhygienic and
unscientific manner causing a nuisance to the public and the residents
of that area. The said mass petition was made over to the Revenue
Divisional Officer/Executive Magistrate, who as per Annexure-II order
dated 7.7.06 (also styled as a notice) called upon the revision petitioner
and others to appear before him at 11 a.m. on 19.7.2006 for a hearing.
The revision petitioner appeared and after taking time filed Annexure-III
objections dated 23.8.2006 denying the allegations and objecting to the
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proposed action. In the meanwhile, on 19.8.2006 the Tahsildar,
Thrissur to whom a copy of the mass petition had been marked for
report submitted a report before the Revenue Divisional Officer stating
that the allegations in the mass petition were well founded. Thereupon,
the first respondent Revenue Divisional Officer passed the impugned
order prohibiting the revision petitioner from conducting the piggery
forthwith. It is the said order which is assailed in this revision.
3. The learned counsel for respondents 2 and 3 raised a
preliminary objection that the impugned order not being a final order but
only a conditional order passed under section 133(1)(b) Cr.P.C. is not
revisable under section 397 Cr.P.C.
4. I am not inclined to accept the above objection regarding
the maintainability of the revision. The impugned order is not a
conditional order the power to pass which could be located under
section 133(1)(b)(ii) Cr.P.C. It virtually partakes the character of a final
order and hence this revision is perfectly maintainable.
5. A perusal of Annexure-II order dated 7.7.2006 as well as
the impugned order dated 14.8.2006 do not show the provision of law
under which those orders have been passed. Going by the nature of
allegations in the mass petition, what is decidable is that the complaint
was one falling under 133(1)(b) Cr.P.C. alleging a public nuisance on
account of the rearing of pigs/porks by the revision petitioner and others.
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If so, the order which the Executive Magistrate ought to have passed
should have been one falling under Clause (ii) of Section 133(1) Cr.P.C.
and giving an opportunity to the opposite party to appear before the
Magistrate and show cause why the conditional order should not be
made absolute in case he objected to the said order. A reading of
Annexure-2 order does not indicate that the said order was passed in
conformity with the above legal provision. All that it shows is that the
opposite party is called for a hearing with reference to the complaint by
the residents of Kaiparambu Panchayat regarding the environmental
pollution. That is not the form in which a conditional order under section
133(1)(b)(ii) Cr.P.C. should be worded or passed. The conditional order
of that nature should be one to desist from carrying on the trade or to
remove the trade or a regulation of the trade in such manner as may be
directed in the order and asking the opposite party to show cause as to
why the said conditional order should not be made absolute in case he
is objecting to the conditional order. Thereafter, the person to whom the
order is addressed is to appear and show cause against the conditional
order in case he is objecting to the same. Where such person after
appearance before the Magistrate shows cause and objects to the
conditional order the Magistrate is to conduct an enquiry under section
137 Cr.P.C. During such enquiry, the Magistrate is to call upon the
complainant to lead evidence in support of the alleged public nuisance.
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The Magistrate is also given the power to direct local investigation or
examination by an expert. In the present case, apart from the fact that
Annexure-II order as well as the impugned order do not conform to the
requirement of law, the impugned order is one virtually partaking the
character of a final order passed without any enquiry and without taking
evidence under section 137 Cr.P.C. Both Annexure-II order as well as
the impugned order dated 14.8.2006 cannot, therefore, be supported.
Since the revision is directed only against impugned order dated
14.8.2006 the same is set aside and the first respondent is directed to
proceed afresh under Chapter X Part B Cr.P.C. strictly in accordance
with law. Since there was a stay of the impugned order passed by this
court, it is not disputed that the piggery run by the petitioner is still
functioning. The first respondent shall after hearing both sides pass
final orders under section 138 Cr.P.C. either directing discontinuance of
the piggery or continuance of the same subject to such conditions as he
may deem fit safeguarding the health of the residents and ensuring that
the piggery does not cause any public nuisance in that locality. But
such final orders shall be passed only after taking evidence and strictly
in accordance with law. Final orders shall be passed by the first
respondent within six months from the date of receipt of a copy of this
order. Until then, the revision petitioner will be entitled to maintain the
piggery without giving room for any complaint of public nuisance and
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ensuring that the same does not emanate any objectionable stink or
other nuisance to the local residents. It is made clear that the
continuance of the piggery will be subject to final orders to be passed as
above. It shall also be lawful for the Magistrate to pass appropriate
prohibitory orders under section 142 Cr.P.C. if such a course is
warranted but only after hearing both sides.
This revision is disposed of as above.
(V. RAMKUMAR, JUDGE)
aks