Magistrate Must Afford Opportunity Of Hearing & Record His Satisfaction About Alleged "Nuisance" Before Passing Order U/S 133 CrPC: Karnataka HC

A single judge bench of Justice V. Srishananda made the observation while allowing the petition filed by Achut D. Nayak and others challenging the order passed by the Sub-Divisional Magistrate, directing closure of the poultry farm on grounds of causing public nuisance. The order was confirmed by the Additional District and Sessions Judge.

Background

The petitioners argued that the the Sub-Divisional Magistrate, without recording the evidence, passed an order on December 19, 2016 to the effect that the preliminary order passed in the case is made absolute. It was submitted that when Section 133 of CrPC is invoked, judicial discretion is mandatory. However, the Magistrate failed to record evidence and also failed to look into the root of the case, as whether the alleged complaint comes under Section 133 to 138 of CrPC or not and hence the order is against the principles of law.

Further it was said that Section 133 CrPC provide a speedy and summary remedy in case of an urgent situation where there is imminent danger to public interest or public health. In all other cases, the parties should be referred to the remedy under the ordinary law of land. But in this case, without any valid reasons and without verifying the alleged reports as to whether the authorities had complied with the procedure laid down by the respective laws before preparing such reports, the Respondent proceeded under Section 133 CrPC.

It was pointed out that the Petitioners have been running their poultry farm over their own lands since 2000 and admittedly, there are nearly 24 to 25 poultry-farms within the jurisdiction. However, it was alleged that some inimical persons misused Section 133 CrPC with false allegations that entire activities of Petitioners are illegal and which effects the health of the neighbouring residents.

It was lastly submitted that the Respondents and the Sessions Court failed to understand that no licence is required to run a poultry farm under any law. The provisions of Section 2 of the Karnataka Land Reforms Act, 1961 clearly state that poultry-farming is part of agriculture.

Findings:

The bench noted it is an admitted fact that the poultry farm is established in a private land belonging to the petitioners. As could be seen from the record of rights, the land in which the poultry farm is situated belongs to the petitioners and it is an agricultural land. The term 'agriculture' in its wide connotation encompasses itself into it the activities allied to the agricultural operations. It cannot be disputed that poultry farming is part of the agricultural operations.

The bench also observed that the material on record shows that the poultry farm is situated about 3 kms away from the place where the residences of the general public are situated. It said ,"What exactly is the type of nuisance that has been caused to the general public at large by establishing such a poultry farm in the private land owned by the petitioners is not forthcoming on record. No material is forthcoming on record placed by the respondents, wherein the general public complained about the nuisance."

The bench then relied on the coordinate bench judgment in the case of Balakrishna Rao Vs. State of Mysore and Others reported in 1973 (1) Mysore Law Journal page 362, wherein it was held that the evidence has to be recorded by the Magistrate. It further observed that, though the spot inspection was conducted in the said case, the evidence was not taken by the Magistrate and therefore, the decision taken by the Magistrate did not satisfy the requisite conditions to pass the order under the provisions of Section 137 Cr.P.C.

Following which it said, "In the case on hand also, the Executive Magistrate failed to record evidence and satisfy about the alleged nuisance. Under such circumstances, the action taken by the authorities without even recording the evidence of the parties, has resulted in miscarriage of justice and also abuse of process of law."

Accordingly, it allowed the petition and set aside the order of the Sub-Divisional Magistrate.

Case Title: ACHUT D. NAYAK & Others v THE SUB-DIVISIONAL MAGISTRATE & ANR

Case No: CRIMINAL PETITION NO. 100284 OF 2019

Citation: 2022 LiveLaw (Kar) 191

Date of Order: 26TH DAY OF MAY, 2022

Appearance: Advocate HARSH DESAI for petitioners

Advocate RAMESH CHIGARI for respondents

Click Here To Read/Download Order