Madras High Court
Prema vs The Sub Divisional Magistrate And on 31 January, 2025
Crl.R.C.No.1733 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON: 20.01.2025
PRONOUNCED ON : 31.01.2025
CORAM
THE HONOURABLE MR.JUSTICE SUNDER MOHAN
Crl.R.C.No.1733 of 2024
and Crl.MP.No.14255 of 2024
1. Prema
2. Vidhya Sharathram
3. Ram Narayan ... Petitioners
Vs.
1. The Sub Divisional Magistrate and
Revenue Divisional Officer,
Coimbatore North District, Coimbatore.
2. The State Rep. by Inspector of Police,
Race Course Police Station, Coimbatore.
3. Kumaravel
4. Lakshmi Narayanasamy
5. Thangavelu
6. Sriram
7. Rajkumar … Respondents
Prayer: Criminal Revision Petition filed under Section 397 r/w 401 of
Cr.P.C., praying to set aside the order dated 21.02.2024 in
Na.Ka.002/2022/A1 passed by the 1st respondent.
For Petitioners : Mr.V.Raghavachari, Sr. Counsel
for Mr.M.Sundarakadeeswaran
For Respondents : Mr.S.Udaya Kumar (for R1 & R2)
Government Advocate (Crl. Side)
Mr.P.Wilson, Sr. Counsel (for R3 to R6)
for Mr.R.Bharathkumar
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1/26
Crl.R.C.No.1733 of 2024
Mr.S.Doraisamy (for R7)
for Mr.K.Sudhakar
ORDER
The Criminal Revision challenges the order dated 21.02.2024 in
Na.Ka.No.02/2022/A1 passed by the 1st respondent under Section 133 of
Cr.P.C., directing the petitioners and one D.Vikram, to vacate the Dog
Breeding Centre, situated at No.28, Circuit House Road, Puliyangulam,
Coimbatore.
2. The brief facts leading to the passing of the impugned order is as
follows:
(a) One P.R.Damodaran, was the original owner of land measuring
(b) On 27.11.2009, the Revenue Divisional Officer, Coimbatore,
had passed an order in Ref.No.2966/09/A2 under Section 133 of the
Cr.P.C., against one D.Vikram, son of the said P.R.Damodaran that he
should not carry on the activity of keeping or holding any dogs in the
said premises and directing him to forthwith remove all dogs from the
premises.
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(c) The said D.Vikram had challenged the said order before this
Court in Crl.R.C.No.1195 of 2009. This Court, observed that the dogs in
a residential area would cause nuisance; and that since the said Vikram
was carrying on a commercial activity, the order passed by the Revenue
Divisional Officer, Coimbatore, need not be interfered with and
dismissed the said revision by the order dated 23.12.2009.
(d) The Special Leave Petition in SLP (Crl.) No.9294 of 2010,
filed challenging the said order was dismissed by the Hon'ble Supreme
Court on 10.01.2011.
(e) The said P.R.Damodaran, filed a suit before the District Munsif
Court, Coimbatore in O.S.No.2529 of 2009 against the Commissioner,
Deputy Commissioner, Assistant Commissioner, Inspector of Police
(L&O) B4-Race Course Police Station, District Collector and Revenue
Divisional Officer of Coimbatore District, praying for an injunction
restraining them from taking any action against him for keeping pet dogs
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in his house. The said suit was decreed exparte on 03.02.2012.
(f) While so on 31.12.2021, a complaint was given by the 3rd
respondent and others to the 1st respondent herein/Revenue Divisional
Officer, stating that in violation of the earlier orders passed by the
Revenue Divisional Officer and the order of this Court in the revision,
the petitioners were running a Dog Breeding Centre.
(g) The 1st respondent herein passed an order on 27.05.2022 in
Na.Ka.No.002/2022/A2. The said Vikram Damodaran, challenged the
said order before this Court in Crl.R.C.No.897 of 2022 stating that the
order was passed without hearing him. This Court vide order dated
14.09.2022, set aside the order dated 27.05.2022 and directed the said
Vikram Damodaran to submit his explanation to the notice dated
05.05.2022 and further, directed the Sub Divisional Magistrate and
Revenue Divisional Officer to consider the said explanation and pass
appropriate orders.
(h) The said Vikram Damodaran and the petitioners herein
participated in the proceedings and filed their written statement objecting
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to the passing of an order under Section 133 of Cr.P.C.
(i) In the meanwhile, the 1st respondent had also sought for a report
from the Executive Engineer, Tamilnadu Pollution Control Board and
obtained a report dated 28.11.2022. Thereafter, after conducting further
enquiry, the 1st respondent passed the impugned order.
3. Mr.V.Raghavachari, learned senior counsel appearing for the
petitioners submitted that
(a) the impugned order cannot be sustained as no preliminary
order was passed under Section 133 of the Cr.P.C and no notice was sent
to the petitioners before passing the impugned order under Section 133
of the Cr.P.C.;
(b) the provisions of Section 133 of the Cr.P.C., can only be
invoked, if there is a public nuisance and if the complaint is with regard
to a private nuisance, the remedy is to file a civil suit;
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(c) the provisions of Section 133 of the Cr.P.C., can be involved
only if there is an element of urgency and they cannot be a substitute for
a civil Court;
(d) though this Court in Crl.R.C.No.1195 of 2009, had upheld the
order passed under Section 133 of the Cr.P.C., against the petitioners'
brother, the same would not be binding as the cause of action to initiate
action then and to initiate action now, are different and the impugned
order has to be tested independently without reference to the earlier order
passed by this Court against the brother of the petitioners;
(e) the impugned order refers to a report from the Engineer
attached to the Tamil Nadu Pollution Control Board and the impugned
order is based on the said report. However, the 1st respondent had not
furnished the copy of the said report to the petitioners; and had also not
examined the author of the report.
4. The learned senior counsel further submitted that the finding of
the 1st respondent that there is nuisance is without any basis; and that the
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dogs in the premises are pet dogs and no commercial activity is
performed/carried out in the premises and therefore, the 1st respondent
ought not to have invoked Section 133 of the Cr.P.C.
5. In support of the aforesaid submissions, the learned senior
counsel relied upon the following judgments.
1.Sumer Singh & Another v. Sanitary Inspector of Bauria, reported in
1955 SCC OnLine Cal 176;
2.Vasant Manga Nikumba and others v. Baburao Bhikanna Naidu
(Deceased) by Lrs. And another, reported in 1995 Supp (4) SCC 54;
3.Manuel Philip Perreira v. State, reported in 1966 SCC OnLine Bom 14;
4.Pepsico India Holding Ltd., v. The District Revenue Officer and 4
others, reported in 2001 SCC OnLine Mad 265;
5.State of M.P., v. Kedia Leather & Liquor Ltd. and others, reported in
(2003) 7 SCC 389;
6.Kachrulal Bhagirath Agrawal and others v. State of Maharashtra and
others, reported in (2005) 9 SCC 36;
7.The Manager, Kodanad Estate v. The Sub Divisional Magistrate,
Nilgiris, reported in 2008 SCC OnLine Mad 316;
8.P.Rayin v. Sub-Divisional Magistrate and Revenue Divisional Officer,
reported in 2024(2) MWN (Crl.) 639;
6. (a) The 1st respondent has filed a counter stating that the
complaint reveals that the petitioners and their brother were keeping
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large number of dogs in a residential area; that the dogs are making
peculiar noises, including barking and howling during night hours; and
that pursuant to the orders of this Court in Crl.R.C.No.897 of 2022, the
1st respondent conducted a detailed enquiry on various dates, gave
opportunity to all parties concerned and passed the order that is
impugned in this revision.
(b). The counter further states that the decree obtained by the
father of the petitioners would not be binding as fresh cause of action has
arisen on the complaint given by respondents 3 to 7 and therefore, the
said decree would not be a bar for his initiating action under Section 133
of the Cr.P.C especially, when the impugned order was passed on the
compliance of the earlier order of this Court in Crl.R.C.No.897 of 2022
dated 14.09.2022.
7. Mr.Wilson, learned senior counsel appearing for respondents 3
to 6 submitted that
(a) this court had earlier elaborately considered the very same
question and held that nuisance is bound to be caused to the general
public due to the keeping of dogs in the house of petitioners as they are
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bound to bark and howl at odd hours; that the challenge to the said order
was negatived by the Hon'ble Supreme Court and that in violation of the
orders of this Court, the petitioners are once again keeping the dogs in
the residential area and therefore, the impugned order passed by the 1st
respondent does not call for any interference;
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(b) the petitioners on coming to know of the earlier order passed
by the 1st respondent, which was set aside by this Court in Crl.RC.No.897
of 2022 by the order dated 14.09.2022 had participated in the enquiry
conducted by the 1st respondent and had also filed a written statement
and hence, in such circumstances they cannot complain of violation of
principles of natural justice;
(c) the observations of this Court in Crl.R.C.No.1195 of 2009
dated 23.12.2009 are binding and the petitioners have in fact violated the
earlier order passed under Section 133 of the Cr.P.C., besides violating
the orders of this Court in the above revision;
d) in the impugned order it is specifically stated that the petitioners
and their brother were running a dog breeding centre in the premises and
therefore, it would amount to a trade or occupation within the meaning of
Section 133 (1)(d) of the Cr.P.C., and hence, the impugned order is in
accordance with the law; and
(e) the petitioners had not obtained any permission to keep the
dogs as mandated under Section 352 of the Coimbatore City Municipal
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Corporation Act.
8. Mr.S.Doraisamy, the learned counsel for the 7th respondent
reiterated the aforesaid submissions and submitted that the order of this
Court had been deliberately violated and there is no reason to interfere
with the impugned order.
9. The learned senior counsel appearing for respondents 3 to 6 and
the learned counsel appearing for the 7th respondent relied upon the
following judgments
Sl.No. Judgments In support of their submission
that
1 2012(5) SCC 1 right to sleep is a fundamental right.
[Ramlila Maidan Incident, In re,]
2 2011(3) SCC 98 the earlier orders of this Court
[M.Nagabhushana v. State of would operate as res judicata and
Karnataka] hence, the petitioners cannot re-
agitate the very same issue in a
different form.
3 (2005) 7 SCC 190 the principle of res judicata is a
[Ishwar Dutt v. Collector (LA) specie of principle of estoppel.
4 [WP No.929 of 2022 dated keeping large number of dogs in the
24.01.2022 premises is likely to cause nuisance
[Sai Bhairavalaya Animal Welfare, to the public.
represented by its Trustee v.
Executive Officer]
10. Considered the submissions made by the learned counsels on
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either side and perused the materials available on record.
11. There cannot be any quarrel with the proposition that an order
under Section 133 of the Cr.P.C must be preceded by a preliminary order
and after affording opportunity of hearing to the person affected by the
said order, the order can either be confirmed or modified.
12. As stated earlier, the 1st respondent had earlier passed an order
on 27.05.2022 calling upon the petitioner's brother to remove the dogs.
The said order was preceded by a notice dated 05.05.2022 admittedly.
This Court while setting aside the order dated 27.05.2022 had directed
the petitioner's brother to submit his explanation to the notice dated
05.05.2022. The petitioners on coming to know of the proceedings also
participated in the said proceedings and filed their written statements.
Therefore, in the peculiar circumstances of the case, it is seen that
though the exact procedure prescribed under Section 133 of the Cr.P.C
has not been followed, the 1st respondent has complied in substance with
the procedural requirements of notice and hearing. Therefore, the
judgments relied upon by the learned senior counsel for the petitioners in
this regard, would not be of any avail to the petitioners.
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13. The order passed by this Court in Crl.R.C.No.1195 of 2009
dated 23.12.2009 was in respect of the very same premises. The brother
of the petitioners was asked to remove the dogs pursuant to an order
passed under Section 133 of the Cr.P.C which was upheld by this Court
and by the Hon'ble Supreme Court. The petitioners and his brother have
now kept the dogs in the very same premises and therefore, the
submission that the said order would have no bearing at all cannot be
accepted.
14. In the earlier order passed by this Court, this Court had made
the following observations.
“20. The Court can take judicial notice that barking and howling of
dogs in a residential area would certainly cause noise pollution and
further, keeping those animals in the residential area, without getting
license under Section 352 of the Coimbatore City Municipal Corporation
Act is also violation. On the aforesaid circumstances, this Court is of the
view that the decisions cited on the side of the petitioner would not make
the action taken by the 4th respondent, Sub-Divisional Magistrate illegal
to remove the public nuisance under Section 133 Cr.P.C. Keeping animals
detrimental to the interest of the other residents cannot be a right of any
person.
21. The Court can take judicial notice that keeping even 6 or 7
dogs in a residential area will cause public nuisance on account of barking
and howling of the dogs, similarly, emitting foul smell by the dogs cannot
be ruled out, which would also cause public nuisance.
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22. Mr.A.Ramesh, learned Senior counsel appearing for the
respondents 2 and 3 relying on the decision of the Madhya Pradesh High
Court, Indore Bench in Krishna Gopal vs. State of M.P., (1986 Crl. L.J
396) submitted that the jurisdiction of the Sub-Divisional Magistrate can
be invoked under Section 133 (1) Cr.P.C., on receiving the report of the
Police Officer or other information and on taking such evidence if any, as
he thinks fit. It was held that on information received, the Sub-Divisional
Magistrate is empowered to take action in this behalf for either removal or
regularising a public nuisance. The action that was initiated on the basis of
a Police Report and the complaint received, could be the basis for taking
action under Section 133 Cr.P.C. It has been held that merely because only
one complainant has come forward to complain about the nuisance, the
nuisance cannot be construed that there was no public nuisance, as
contemplated under Section 133 Cr.P.C. In the instant case, there was
complaints by three persons and they complained before the Sub-
Divisional Magistrate, in order to remove the public nuisance and further,
as per the impugned order, it is made clear that the Sub-Divisional
Magistrate has considered the reports of the Inspector of Police, B4 Police
Station, Assistant Commissioner of Police (Central) and the report of the
Joint Director of Health Services and that the Commissioner, Coimbatore
Corporation has also reported that no NOC was issued for rearing dogs at
the residence of the petitioner.
23. It is not in dispute that public nuisance may be an annoyance,
by way of unbearable noise or emitting foul smell. The barking and
howling of dogs at the residential area is certainly be construed as a public
nuisance, since it is an annoyance to public at the residential area. Keeping
number of dogs in a residential area would also emit foul smell, injurious
to the public health. It cannot be said by the petitioner that there was no
howling or barking by the dogs or no emitting of foul smell, since more
number of dogs were kept nearby the residence of the respondents 1 to 3.
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In a civilized society, every one has a right to live peacefully without noise
pollution and health hazardous atmosphere, which has been recognised as
a fundamental right guaranteed under Article 21 of the Constitution of
India.
24. Even the conduct of any trade or occupation or keeping of any
goods or merchandise, injurious to health or physical comfort of the
community, could be construed only as a public nuisance. The noise
pollution or air pollution cannot be ruled out as an exception. As held by
the Kerala High Court, in Madhavi vs. Thilakan, reported in 1989 Crl. L.J
499, with reference to Articles 21 and 47 of the Constitution of India
and Section 133 Cr.P.C, it cannot be disputed that right to live includes
right to live in peace, to sleep in peace and right to repose good health.
Running workshop in certain circumstances can cause air pollution and
noise pollution, which could be regulated or prohibited by the authority in
invoking the provisions of law. The noise and fuels emanating from the
workship will cause health hazardous. Noise pollution and emitting foul
smell by keeping dogs in a residential area is no way a lesser hazardous
condition than a factory creating noise pollution. Barking and howling of
dogs and emitting foul smell in a residential area is undoubtedly a public
nuisance.
25. The power under Section 133 Cr.P.C. is vested with the Sub-
Divisional Magistrate or Executive Magistrate, in order to protect the
people from the tyranny of the public nuisance, by way of removing the
nuisance.
26. It is also an admitted fact that the petitioner has not obtained
any license from the authorities, as contemplated under Section 352 of the
Coimbatore City Municipal Corporation Act, 1981, for keeping dogs. The
petitioner is keeping number of dogs not as pet dogs, but for commercial
purposes. The power agent of respondents 1 to 3 was examined and he has
specifically stated that he was conversant with the facts of the case and he
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was also cross-examined by the petitioner herein and therefore, there is no
error in considering the evidence of the power agent of the complainants,
when it is supported by other material evidence available on record. It has
been made clear that the Sub-Divisional Magistrate was empowered
under Section 133 Cr.P.C., for removal of nuisance and to protect the
people from public nuisance. The dogs, being kept by the petitioner were
causing nuisance by way of barking and howling in the residential area of
the respondents 1 to 3 and hence, the action taken by the 4th respondent
under Section 133 Cr.P.C., cannot be construed as an illegal act.
27. As held by the Hon'ble Apex Court, nuisance is an
inconvenience which materially interferes with the ordinary physical
comfort of human existence, but it is not capable of precise
definition. Section 133 attracts only public nuisance, as held by the
Hon'ble Supreme Court in Vasant Manga Nikumba vs. Baburao Bhikanna
Naidu, reported in (1995) 4 (Supp) SCC 54. If the inconvenience or
annoyance affects public at large, that has to be construed only as public
nuisance. In the instant case, it has been established that barking and
howling of the dogs have caused inconvenience and annoyance to the
respondents 1 to 3 as well as other people residing in the locality and
therefore, it is only a public nuisance. Similarly, emitting foul smell is also
a public nuisance, causing inconvenience to all the people residing in the
locality. As a matter of right, no one is entitled to keep dogs or other
animals in a residential area, so as to create public nuisance. Considering
the barking and howling of dogs, in addition to emitting foul smell, the
concerned authority, empowered under Section 133 Cr.P.C., can take
action to remove the nuisance.
28. The object and purpose behind Section 133 of the Code is
essentially to prevent public nuisance and which involves a sense of
urgency in the sense that if the Magistrate fails to take recourse
immediately irreparable damage would be done to the public, as decided
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by the Hon'ble Apex court in State of M.P. vs. Kedia Leather & Liquor
Ltd., reported in 2003 SCC (Cri) 1642.
15. The petitioners in their written statements have admitted that
dogs are present in their premises. The relevant portions are extracted
hereunder
“6. …The dogs at present in the premises are progenies of dogs
belonged to Late P.R.Damodaran, husband of no.2 of these parties and
father of nos.1,3 & 4 of these parties.
8. … As such nos.3 and 4 also have their pet dogs maintained in
the premises Door No.28, Circuit House Road, Coimbatore.
9. ... This proceeding would show that other than no.1 of the B
party, his family members also had pet dogs in the same premises even
during the earlier proceedings and now they continue to have their
pups.....”
16. In the light of the above admission made by the petitioners and
in view of the observation made by this Court in Crl.R.C.No.1195 of
2009, in respect of the same premises, which has become final, this Court
is of the view that the 1st respondent is bound by the observations of this
Court and hence, the impugned order stating that the presence of dogs in
large number is likely to cause physical discomfort to the residents of the
locality, cannot be faulted.
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17. The other submission of the learned senior counsel for the
petitioners is that the provisions of Section 133 of the Cr.P.C cannot be a
substitute for civil Court and can be invoked only when there is an
emergency and since even according to the respondents, the dogs are
kept since the COVID-19 period, there was no reason for the impugned
action.
18. This Court is of the view that the complaint of the respondents
3 to 7 would show that immediately after the lock down period they had
given a complaint to the District collector on 31.12.2021 stating that the
petitioners and their brother, were running a breeding centre in their
premises and it causes health hazard besides causing nuisance to the
residents. The 1st respondent had taken action immediately and pursuant
to the orders of this Court, an enquiry was conducted and the impugned
order has been passed. Therefore, this Court also is not inclined to
accept the submission of the learned senior counsel for the petitioners
that the respondents had tolerated nuisance and therefore, there is no
urgency in the issue, to invoke Section 133 of the Cr.P.C.
19. The order passed by the civil Court would also not be binding
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on the respondents as the respondents cannot be restrained permanently
from taking any action even if there is a fresh cause of action to initiate
action under Section 133 of the Cr.P.C . Therefore, this Court is of the
view that a decree obtained by the petitioner's father would not prevent
the respondents to take action if the conduct of the petitioners warrant an
action under Section 133 of the Cr.P.C .
20. The question therefore is whether the provisions of Section 133
of the Cr.P.C can be invoked. It is also not in dispute that Section 133
of the Cr.P.C can be invoked only if there is a nuisance of such a nature
which are mentioned in Section 133 (1) (a) to (f) of the Cr.P.C. If there
is only a private nuisance, the aggrieved persons can only approach the
civil Court. It is not in dispute that Section 133(1) (a) and (c) to (f) would
not be applicable to the facts of the instant case. It has to be examined
whether Section 133(1)(b) of the Cr.P.C., can be invoked. Section
133(1)(b) of the Cr.P.C., reads as follows:
“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 regulated:”
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21. Unless the 1st respondent finds that keeping of dogs is pursuant
to a trade or occupation of the petitioners or their brother, Section 133 of
the Cr.P.C., cannot be invoked.
22. Any action under Section 133 (1)(b) of the Cr.P.C., has to
satisfy two requirements. The second requirement viz., that the keeping
of dogs is injurious to the health or physical comfort of the community,
has been dealt with by this Court in Crl.RC No.1195 of 2009. The said
order is binding in so far the injury to the health or physical comfort.
The injury to the health or physical comfort of a person would not
depend on whether the dogs are kept as pets or pursuant to any trade or
occupation. However, the question as to whether the first requirement
viz., that the dogs were kept pursuant to any trade or occupation ought to
have been specifically dealt with by the 1st respondent. Merely because,
the petitioner's brother was carrying on a commercial activity in the year
2009, as observed by this Court in 2009, it cannot be said that the
petitioners and their brother are carrying on commercial activity even
now, as admittedly the dogs were removed after the earlier order.
However, it also cannot be denied that there is a strong presumption
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against the petitioners and their brother, that they are carrying on a
commercial activity. However, that alone may not be sufficient.
23. In the impugned order, the 1st respondent has stated that in the
year 2009, a Dog Breeding Centre was run by the petitioners' brother.
The relevant portion, reads as follows:
“jpU/tpf;uk; vd;guhy; mtuJ tPl;oy; tsu;ff
; g;gl;l
eha;gz;izapid mfw;wpl 03/09/2009 md;W
cj;jutplg;gl;lJ”
The impugned order further states as regards the keeping of dogs now as
follows:
“nkYk;. ghu;it 7y; fhQqk; fojk; thapyhf jkpH;ehL
khRf;fl;Lg;ghl;L thhpa khtl;l Rw;Wr;R{Hy; thhpa khtl;l
Rw;Wr;R{Hy; bghwpahshpd; mwpf;ifapy; vjpu;kDjhuu;
jpU/tpf;uk; vd;gtu; jdJ tpl;oy; 32 eha;fis tsu;j;J
tUtjhft[k;. nkYk; mtuJ tPl;oy; 80 eha;fis
tsu;g;gjw;F VJthf 6 eha;tsu;f;Fk; tPLfSk; kw;Wk;
,uz;L Tlhu';fSk; mikj;Js;shu; vd;Wk;. nkYk;
mtuJ tPl;od; tlf;F gFjpia xl;oathW kDjhuu;fspd;
tPLfs; mike;Js;sJ vd;Wk;. nkYk; vjpu;kDjhuu;
tPl;ow;F mUfpy; xU FWf;F rhiyapid bjhl;lhw;
nghy; murpdu; tpUe;jpdu; khspif cs;sjhft[k; ehs;
fHpt[fshy; mUfpy; FoapUg;gtu;fSf;F bjhe;jut[ Vw;gl
tha;g;g[ ,Ug;gjhft[k;. nkYk; eha;fs; vGg;gk
[ ;
rg;jj;jpdhy; mUfpy; ,Ug;gtu;fSf;F bjhe;jut[ Vw;gl
tha;g;g[ ,Ug;gjhft[k; bjhptpj;Js;shu;/
vjpu;kDjhu; jpU/ tpf;uk; vd;gtu; mtuJ tPl;oy;
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nfhak;g[j;J}u; khefuhl;rpapd; mDkjpapy;yhky; tpahghu
nehf;fj;jpy; 32 eha;fis itj;J ,dg;bgUf;fk; bra;J
tsu;j;J tUtJk;. me;j eha;fspd; fHpt[fspdhy; Vw;gLk;
Ju;ehw;wk; kw;Wk; me;j eha;fs; Vw;gLj;Jk; rg;jj;jpdhy;
rpukKk; Rfhjhu rPu;nfLk; Vw;gLtJ bjspthfpwJ/
///
vdnt nkw;fz;l Kfthpapy; nkw;go egu;fshy;
mDkjpapy;yhky; elj;jg;gl;L tUk; eha;gz;iz kw;Wk;
eha; ,dg;bgUf;f ikaj;jpid cldoahf fhyp bra;jpl
Fw;wtpay; eilKiwr;rl;lg;gphpt[ 133d; fPH;
cj;jutplg;gLfpwJ/ ,t;t[j;jput[ fpilf;fg;bgw;w 10
jpd';fSf;Fs; jpU/tpf;uk; kw;Wk; 3 egu;fSf;F
brhe;jkhd tPl;oy; ,a';fp tUk; eha; gz;izapid
mfw;wpl cj;jutplg;gLfpwJ/”
24. From the above, it is seen that the 1st respondent had relied
upon a report of an Engineer attached to the Tamil Nadu Pollution
Control Board and thereafter, concluded on the basis of the said report
that the petitioners' brother was running a Dog Breeding Centre, without
the permission of the Corporation by keeping 32 dogs.
25. It is not clear from the impugned order as to whether the report
of the Pollution Control Board was furnished to the petitioners. Since
the conduct of any trade or occupation is a sine qua non, for invoking
Section 133 (1)(b) of the Cr.P.C., the 1st respondent ought to have stated
as to how he had concluded that a trade or occupation was being
conducted. If he had relied upon a report, then the copy of the same
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ought to have been furnished to the petitioners. Therefore, this Court is
of the view that the matter can be remitted back to the 1 st respondent to
decide whether the petitioners have kept the dogs pursuant to a trade or
occupation.
26. Black's Law Dictionary, defines 'trade' and 'occupation' as
follows:
Trade:
1. The business of buying and selling or bartering goods or services;
2. A transaction or swap;
3. A business or industry occupation; a craft or profession.
Occupation:
1. An activity or pursuit in which a person engages; exp., a person's
usual or principal work or business. ...
27. The other grounds raised by the petitioners as stated earlier are
rejected as devoid of merits. The judgments relied upon on either side
are not specifically referred to since the law laid down in the judgments
cited on either side is not in dispute. The question really is whether the
facts warrant an action under Section 133 of the Cr.P.C., which has been
dealt with.
28. The 1st respondent therefore, shall give opportunity to the
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parties viz., respondents 3 to 7, the petitioners and their brother to
establish their respective cases as regards the conduct of trade or
occupation. Since the matter has been going back and forth the 1 st
respondent shall complete this exercise within a period of four weeks
from the date of receipt of a copy of this order and shall pass a fresh
order in accordance with law, based on the evidence adduced on either
side and the evidence if any, collected by him in exercise of his powers
under Sections 139 and 140 of the Cr.P.C.
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29. With the above observation, the Criminal Revision Case is
disposed of. Consequently, the connected Criminal Miscellaneous
Petition is closed.
31.01.2025
Index : Yes/No
Speaking Order/Non Speaking Order
Neutral Citation: Yes/No
ars
To
1. The Sub Divisional Magistrate and
Revenue Divisional Officer,
Coimbatore North District,
Coimbatore.
2. The Inspector of Police,
Race Course Police Station,
Coimbatore.
3.The Public Prosecutor,
High Court, Madras.
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SUNDER MOHAN, J.
ars
Pre-delivery order in
31.01.2025
https://www.mhc.tn.gov.in/judis
