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Criminal Miscellaneous Application No. 658 of 1985, decided on 28^th April, 1986.

‑‑Ss. 133, 439‑A & 561‑A‑‑Public nuisance‑‑Conditional notice under S. 133, Cr.P.C. issued‑‑Sub‑Divisional Magistrate subsequently issuing letter to S. H . O . to stop alleged public nuisance‑‑Order not yet final‑ Revision against order dismissed by Additional Sessions Judge‑‑Order impugned in High Court by application under S. 561‑A, Cr.P.C.‑ Maintainability of such applications‑‑Order of Additional Sessions Judge passed under S. 439‑A, Cr.P.C. held, could be considered within compass of inherent powers of High Court to secure ends of justice.

1969 P Cr. L J 300; P L D 1968 P Cr. L J 21; 1972 P Cr. L J 680; P L D 1958 Dacca 425; P L D 1964 Dacca 56; 1982 C L C 249; PLD 1978 Lah.287; 1969 S C M R 325; P L D 1979 Lah.728; P L D 1974 Lah. 71 and 1968 P Cr. L J 225 ref.

‑‑‑Ss. 133, 439‑A & 561‑A‑‑Public nuisance‑‑Conditional order stopping running of factory during pendency of proceedings‑‑Propriety of‑‑Notice under S. 133, Cr.P.C. issued‑‑Letter to Incharge Police Station issued in exercise of powers under S. 142, Cr.P.C. enforcing execution of conditional order‑‑Proceedings still pending‑‑Order not yet final‑ Revision against conditional order dismissed by Additional Sessions Judge‑‑Order of Magistrate enforcing conditional order through police, held, was uncalled for amounting to abuse of process of Court but order of Additional Sessions Judge refusing to interfere with proceedings under S.133 would not call for exercise of powers vested under S. 561‑A, Cr.P.C. in circumstances.

A.S. Vaswani for Applicant.

Asghar Husain for the State.

Attaullah Khan for Respondents Nos. 2 and 3.

Dates of hearing: 19th and 22nd December, 1985.

This is an application under section 561‑A, Cr.P.C. It is directed against an order, dated 28‑5‑1985 passed by learned VIth Additional Sessions Judge, Karachi, whereby he, dismissed Criminal Revision Application No. 4 of 1985.

2. The criminal revision application before the Additional Sessions Judge, called in question an order, dated 27‑12‑1984 passed by Assistant Commissioner and S.D.M. Nazimabad, Karachi, in a Case No. 285 of 1984, under section 133, Cr.P.C. The order was passed on an application made to the S.D.M. Nazimabad by the respondents herein, Lateef and Mistri Muhammad Ramzan, on 26‑5‑1984, that the applicant herein, Lai Din, had caused nuisance by establishing and running a factory in the residential Mohallah on Street No. 35, Block B, Shershah Colony, Karachi. The application was referred to S. H. O., S. I. T. E. , Karachi, for enquiry and report. The S.H.O. submitted report, dated 3‑7‑1984 for taking proceedings under section 133, Cr.P.C. The learned S.D.M. passed following order on 15‑7‑1985.

"Register the case under section 133, Cr.P.C. and ask the party to stay the looms and submit the reply within fifteen days."

Notice under section 133, Cr.P.C. was issued to the applicant, on 17‑7‑1984, as under:‑‑

"Whereas it has been made to appear to me that you are carrying on as owner of Sidiq Silk Factory at. Plot No. M.II.E. 249, Street No. 35, 'B' Block, Mohammadi Road, Shershah Colony, Karachi, in such a manner which is causing nuisance and inconvenience to the residents of the locality.

You are hereby directed to stop power‑looms forthwith and submit your written statement within 15 days of the receipt of this notice."

On an application, dated 24‑7‑1984, made by the respondent Muhammad Ramzan that the applicant had not obeyed the order, the learned S.D. M. passed following order, on 30‑7‑1984.

S. H.O., S.I.T.E., Visit the site and operation of the looms be stopped at once if there is no legal hitch/stay order in this regard and send your report."

The learned Magistrate passed following order, dated 27‑12‑1984 in the form of a letter addressed to the S . H . O. , S . I . T . E. Karachi.

"To

The S.H.O.,

S.I.T.E. Police Station, Karachi.

Subject: Case No. 285/84. (1) Abdul Latif (2) Muhammad Ramzan v. Lai Din

under section 133, Cr.P.C. of P.S. S.I.T.E., Karachi.

Please refer to this Court order, dated 17‑7‑1984. Copy attached and subsequent order passed on 30‑7‑1984. On the application of complainant, copy attached and ensure that operation of power‑looms situated at Sidiq Silk Mills/Factory, Street No. 35, Plot No. N.II.E.249 'B' Block Mohomedi Road Shershah Colony, Karachi Stop power‑looms forthwith and compliance be reported to this Court immediately.

Assistant Commissioner and S . D . M . ,

Nazimabad, Karachi."

The applicant had filed written statement on or about 18th August, 1984 and agitated, inter alia, that the notice issued to him was illegal, bad in law, without lawful authority and without jurisdiction. He disclosed that he had filed a Civil Suit No. 1079 of 1984 in the Court of VIIth Sr. C .J. , Karachi. He stated that the respondent's injunction filed in that suit to restrain him from operating the looms was dismissed by an order, dated 19‑5‑1985 and it was thereafter that the proceedings were manoeuvred against him. He raised the plea that the alleged dispute was of private nature and no public interest was involved.

The applicant filed revision application under section 439‑A, Cr.P.C. (No. 4 of 1985) in the Sessions Court, Karachi against the last order, dated 27‑12‑1984. Operation of the impugned order was suspended by the Vlth Additional Sessions Judge, Karachi by order, dated 7‑1‑1985. However, the learned Judge, dismissed the revision application by the impugned order, dated 28‑5‑1985, holding that the order challenged under the revision application was not final but was conditional one and the Magistrate had yet to pass final order.

The learned counsel for the parties have addressed arguments mainly on the sphere of section 133, Cr.P.C. The learned Advocate for the applicant has contended that the facts do not constitute public nuisance and the provisions of section 133, Cr.P.C. are not attracted as the applicant has been operating the factory on his own premises. He has cited 1969 P. Cr. L J 300; P L D 1968 P Cr. L J 21, 1972 PCr. LJ 680 and P L D 1958 Dacca 425 as supporting authorities. He has further contended that the Magistrate had not passed any order but he had simply issued notice and addressed a letter to the S.H.O. and both the notice and the order were liable to be quashed. He has relied upon cases reported in P L D 1964 Dacca 56 and 1982 C L C 249. He has submitted that since suit had been filed and injunction application filed by the respondents had been dismissed, the institution of the proceedings under section 133, Cr.P.C. was a mala fide action.

On the other hand, the learned counsel for the private respondents have, at the outset, taken exception to the maintainability of the application, as a revision application was filed in the Sessions Court. They have placed reliance on the case reported in P L D 1978 Lah. 287, 1969 S C M R 325; and P L D 1979 Lah. 728. They have further urged that the action of operating a factory in residential area amounts to nuisance to community and have relied upon a case cited as P L D 1974 Lah. 71, wherein reference is made to an earlier case reported in 1968 P Cr. L J 225.

The learned Advocate appearing for the State has not supported the order passed by the learned Magistrate.

The legal objection to the maintainability of the application does need consideration. The order impugned in this application was passed by the learned Additional Sessions Judge under the provisions of section 439‑A, Cr.P.C. It is laid down under clause (b) of subsection (4) of section 439, Cr.P.C. that a High Court is not authorised to entertain any proceedings in revision with respect to an order made by the Sessions Judge under section 439‑A, Cr.P.C. The petitioner has therefore, invoked inherent jurisdiction of this Court vested under section 561‑A, Cr.P.C. which envisages making of an order by the High Court as to give effect to any order passed under the Criminal Procedure Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. The impugned order is to be considered within the compass of the aforesaid inherent powers of this Court. It is sought to be set aside for securing ends of justice. The learned Additional Sessions Judge has dismissed the Revision Application on the ground that the order of the learned Magistrate was conditional one and enquiry was yet to be held for passing final order.

There is a separate Chapter X in the Code of Criminal Procedure on "Public Nuiance". It comprises of eleven sections from section 133 to section 143 (both inclusive) and it contains comprehensive procedure for dealing with the cases of public nuisance. Section 133 provides for making a conditional order for removal of public nuisance. Its parts relevant for the purpose of this case are as under:‑‑.

"133. Conditional order for removal of nuisance.‑‑(1) Whenever a District Magistrate, a Sub‑Divisional Magistrate or a Magistrate of the First Class considers, on receiving, a police report or other information and on taking such evidence (if any) as he thinks fit, .........................

that the conduct of any trade or occupation, .. 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 Magistrate may make a conditional order requiring the person . carrying on such trade or occupation . ..........within a time to be fixed in the order to desist from carrying on, or to remove or regulate in such manner as may be directed, such trade or occupation; or

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or, if he objects so to do, to appear before himself or some , other Magistrate at a time and place to be fixed by order., and move to have the order set aside or modified in the manner hereinafter provided.,

(2) No order dulsy made by a Magistrate under this section shall be called in question in any civil Court."

Explanation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Section 134, Cr.P.C. lays down the manner in which service of the order under section 133, Cr.P.C. is to be effected‑. Section 135, Cr.P.C. provides that the person to whom order under section 133, Cr.P.C. is addressed shall obey the order; or appear. in the Court and show cause against the order, or apply to the Magistrate by whom the order is made to appoint jury to try whether the order is reasonable and proper. Section 136, Cr.P.C. prescribes penalty for non‑compliance of the order or failing to show cause against it or applying for appointment of a jury. It also provides for making the, conditional order absolute, if no representation is made. Section 137 lays down the procedure for holding enquiry if cause is shown against order passed under section 133, Cr.P.C. Section 138, Cr.P.C. lays down procedure where appointment of jury is sought under section 135, Cr.P.C. Section 139 provides for making the conditional order absolute subject to such modifications recommended by the jury. Section 139(A) lays down procedure where existence of a public right is denied, section 140 provides that when conditional order made under section 133, Cr.P.C. is made absolute, such notice shall be given to the person against whom the order is made absolute and he shall be required to comply with the order and warned of the penalty of prosecution under section 188, Pakistan Penal Code in the case of disobedience. It also empowers the Magistrate to cause the order executed in the case of disobedience thereof. Section 141, Cr.P.C. makes provision for the eventuality of the failure of jury proceedings. Section 142, Cr.P.C. provides for the order of injunction during the pendency of inquiry. It reads as under:‑‑

"142. Injunction pending inquiry.‑‑ (1) If a Magistrate making an order under section 1 3 considers that immediate measures should be taken to prevent imminent danger or injury of a serious kind to the public, he may whether a jury is to be, or has been appointed or not, issue such an injunction to the person against whom the order was made, as is required to obviate or prevent such danger or injury pending the determination of the matter.

(2) In default of such person forthwith obeying such injunction, the Magistrate may himself use, or cause to be used, such means as he thinks fit to obviate such danger or to prevent such injury.

(3) No suit shall lie in respect of anything done in good faith by a Magistrate under this section.

The last section 143, Cr.P.C. confers powers on a District Magistrate, Sub‑Divisional Magistrate or any other Magistrate empowered by the Provincial Government or District Magistrate in that behalf to make an order prohibiting the repetition or continuance of a public nuisance

Examining the events of the impugned proceedings in the context of the provisions of Chapter X, Cr.P.C. but lined above, it would appear that the order of the learned Magistrate, dated 15‑7‑1985. reproduced above on page 2 of this order, was a conditional order under section 133, Cr.P. C. Notice, dated 17‑7‑1984 reproduced above, was issued in pursuance of the order, dated 15‑7‑1985. The letters to the S.H.O., S.I.T.E., dated 30‑7‑1984 and 27‑12‑1984 seem to have been passed in exercise of powers vested under section 142, Cr.P.C obviously, the learned Magistrate adopted the procedure laid down in Chapter X of the Code of Criminal Procedure outlined above. The only question that needs consideration is the propriety of the orders to the S. H .O . S. I . T . E. issued on 30‑7‑1984 and 27‑12‑1984 that the operation of the factory should be stopped. This aspect of the matter does not seem to have drawn attention of the learned Additional Sessions Judge. It is mentioned in the application under section 133, Cr.P.C. that the respondents had made similar application to the Magistrate earlier and the matter was settled on the undertaking by the applicant that he would not operate the looms in the factory during night hours. It is alleged that the applicant did not abide by the undertaking given by him. The petitioner's contention in the written statement filed before the passing of the order, dated 27‑12‑1984 is that some other factories had been operating in the same area. The operation of the looms in the applicant's factory was not of such a serious nature as to have called for exercise of powers enforcing execution of conditional order through police during the pendency of the proceedings. The order of the learned Magistrate to that extent was uncalled for and amounts to abuse of the process of the Court. However, the order of the learned Additional Sessions Judge refusing to interfere with the proceedings taken by the learned Magistrate under section 133, Cr.P.C. does not call for interference under the powers vested under section 561‑A , Cr. P . C . but the injunction orders passed under section 142, Cr.P.C. and not considered by the learned Additional Sessions Judge in proper perspective need to be quashed as their operation tantamounts to abuse of the process of the Court. The application is allowed to that extent. The learned Magistrate shall proceed with the proceedings and complete them within the next three months and pass appropriate orders; but the order of injunction passed by him prohibiting operation of looms during the enquiry proceedings stands quashed.

S.A. Application partly accepted.

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