Pravinbhai Shankerbhai Panchal vs State Of Gujarat
2024 Latest Caselaw 1296 Guj

Gujarat High Court

Pravinbhai Shankerbhai Panchal vs State Of Gujarat on 14 February, 2024

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      R/CR.MA/12669/2014                              ORDER DATED: 14/02/2024

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
      R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                     FIR/ORDER) NO. 12669 of 2014
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                       PRAVINBHAI SHANKERBHAI PANCHAL
                                    Versus
                         STATE OF GUJARAT & 3 other(s)
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Appearance:
MR BM MANGUKIYA(437) for the Applicant(s) No. 1
MS BELA A PRAJAPATI(1946) for the Applicant(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 4
MR SHAILESH C SHARMA(3450) for the Respondent(s) No. 3
MR HARDIK SONI, APP for the Respondent(s) No. 1,2
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     CORAM:HONOURABLE MR. JUSTICE CHEEKATI
           MANAVENDRANATH ROY

                               Date : 14/02/2024
                                ORAL ORDER

1. This Criminal Misc. Application under Section 482 of the Code of Criminal Procedure, 1973 (for short "the Cr.P.C.") is filed challenging the legal validity of the impugned order dated 03.06.2014 passed by the learned Sub Divisional Magistrate under Section 133 of Cr.P.C., whereby he has interdicted the applicant from running a small fabrication unit in his residential house directing him to close the said unit on the ground it is causing harm to the health of the inhabitants of the locality.

2. Heard learned advocate Mr.B.M.Mangukiya for the applicant and learned Additional Public Prosecutor Mr.Hardik Soni for the respondent- State. None appears for respondent no.3.

3. The facts of the case lie in a narrow compass and may be stated as follow:-

3.1 The applicant owns a residential house at Bhadaran Village. He

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has been running a small fabrication unit in his residential house for the last 45 years prior to passing the impugned order and has been carrying on welding and other works in his house. The neighbour of the applicant, who is the third respondent herein, complained to the second respondent-

Sub Divisional Magistrate that on account of running the said fabrication unit and doing welding works in the house of the applicant that it is causing nuisance to him and other inhabitants of the locality and it is also harmful to the health of the inhabitants of the locality.

3.2 On receipt of the said complaint, the learned Sub Divisional Magistrate issued a notice to the applicant, the applicant has made his appearance before him. Thereafter, the impugned order dated 03.06.2014 was passed by the second respondent-Sub Divisional Magistrate in exercise of his powers conferred on him under Section 133 of Cr.P.C. directing the applicant to close the said unit in his house and not to carry on the said activity of doing welding works and fabrication works in the said house. According to the learned Sub Divisional Magistrate, the said activities are causing harm to the health of the public and also causing nuisance in the locality.

4. Learned advocate Mr.Mangukiya for the petitioner, among other grounds urged, mainly assailed the impugned order on the ground that as per the procedural requirement as contemplated under Section 133 of Cr.P.C., under which the impugned order was passed, the Sub Divisional Magistrate has to first pass a conditional order and then after conducting an inquiry as contemplated under law on appearance of the applicant before him, he has to pass a final order either making the conditional order absolute and vacating the same. He would contend that the learned

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Sub Divisional Magistrate did not pass any such conditional order and he straightaway passed the impugned final order, which is legally not sustainable. To prop of this contention he relied on the judgment of this High Court rendered in the case of Branch Manager, Vijaya Bank vs. State of Gujarat, 1998 (2) G.L.R. 1004.

4.1 Therefore, he would vehemently contend that as the impugned order is not passed after passing the conditional order that the same is ex facie, illegal and thereby prayed to set aside the same on the aforesaid sole ground.

5. Per contra, learned Additional Public Prosecutor Mr.Hardik Soni for the respondent-State, would contend that the word "may" is used in Section 133 of Cr.P.C., which clearly indicates that the Sub Divisional Magistrate may make a conditional order and as such, it is not mandatory and even if any such final order is passed without passing a conditional order, it will not ipso facto make the order illegal and the same cannot be set aside on the said ground. He, then, contends that as per Section 138 of Cr.P.C., the Magistrate has to only issue show cause notice to the applicant and after his appearance, he shall hear him and cause an inquiry and if necessary, record evidence in the matter as a summary case and then pass a final order. So, he would submit that as show cause notice was issued to the applicant and after hearing him, that the impugned order was passed, it is perfectly sustainable under law and it is not liable to be set aside. As regards the judgment of this High Court cited supra, he would submit that this Court while deciding the said case missed its attention to the word is used "may" in Section 133 of Cr.P.C., which is directly and not mandatory and as this Court earlier held that passing a

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conditional order is mandatory that the said judgment requires reconsideration and thereby, prays the Court to refer the matter to two Judge Bench to interpret the said provision whether it is mandatory or not.

6. As can be seen from the judgment of this Court rendered in the case of Branch Manager, Vijaya Bank (supra), there also the Executive Magistrate has straightaway passed a final order without passing any conditional order as required under Section 133 of Cr.P.C. The Court found fault with the learned Magistrate in straightaway passing the final order. The Court held that in view of the requirement of law under Section 133 of Cr.P.C., the Magistrate has to first pass a conditional order and thereafter, has to pass a final order. As the Magistrate did not pass any such conditional order and straightaway passed the final order, this Court has set aside the said order.

7. After going through the judgment of this Court, this Court is of the considered view that Section 133 of Cr.P.C. has been correctly interpreted. A reading of Section 133 of Cr.P.C. makes it manifest that while passing any order under Section 133 of Cr.P.C. that the Magistrate has to first pass a conditional order and then, after making an inquiry as required under Section 138 of the Cr.P.C., he has to pass a final order. Therefore, the section of law has been correctly interpreted by this Court in the above reported judgment. There are absolutely no valid legal grounds emanating from the record to consider the request of learned Additional Public Prosecutor to refer the matter to the Division Bench to decide the correctness of the law laid down by this Court in the above judgment and the interpretation given by this Court to Section 133 of

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Cr.P.C. Therefore, this Court is of the considered view that absolutely no ground in emanating from the record to differ with the view taken by this Court in the above reported judgment and to refer the matter to the Division Bench.

8. As the impugned final order was straightaway passed without passing any conditional order as required under law, which is a condition precedent to pass any final order, the impugned order is clearly unsustainable under law. Therefore, the impugned order is liable to be set aside on the sole ground.

9. Resultanly, the application is allowed. The impugned order dated 03.06.2014 passed by the learned Sub Divisional Magistrate is hereby set aside. However, if any such instance of causing public nuisance, or harm to the health of inhabitants of the locality on account of any such activities being carried on by the applicant in his house, the learned Sub Divisional Magistrate is at liberty to initiate proceedings after by strictly following the procedure prescribed in Section 133 of Cr.P.C. as per the law enunciated by this Court in the above case of Branch Manager, Vijaya Bank (supra).

Sd/-

(CHEEKATI MANAVENDRANATH ROY, J) ABHISHEK