Revisionist v. State of Uttaranchal & Ors.

Sharma and Smt. Neelam Tyagi. Innumerable vehicles of sundry nature come there to weigh the trolley and trailers loaded with fodder and after getting weighed the same, they park their respective vehicles in the close vicinity of the residential block of Dr. Sukhdev Sharma and Smt. Neelam Tyagi. Many of the vehicles are towed by the buffaloes and oxen. These vehicles remain parked there until the entire fodder is sold out to the retailers and other needy persons. All these activities create great nuisance and problem in the surrounding area. So, Dr. Sukhdev Sharma and Smt. Neelam Tyagi, who live in the vicinity, moved an application to the Sub-Divisional Magistrate on 12.11.2002 under Section 133 CrPC seeking 2 direction for Satish Chand Sharma to shift his weighing machine somewhere else.

3. Thereafter, on 15.11.2002, a conditional order under Section 133(1)(b) CrPC was issued by the Sub-Divisional Magistrate to Satish Chand Sharma, owner of the said weighing machine, who subsequently appeared and filed his objections. He denied the allegations of any type of public nuisance being created at his weighing machine centre. He averred that he has valid license, duly obtained from Roorkee Municipality, and No Objection Certificate of the concerned authority for operating the said weighing machine centre.

4. The learned Sub-Divisional Magistrate, while on round of the city, himself inspected the entire site in the morning and noticed the nuisance prevailing at the said spot, and made observations about the same in his judgment and order dated 14.7.2003. However, when the owner of the said weighing machine centre show-caused against the conditional order, he did not ask the complainants to produce their evidence as envisaged under Section 138 CrPC, and passed the aforesaid judgment and order thereby making his earlier conditional order dated 15.11.2002 absolute and directed Satish Chand Sharma to remove the said weighing machine from the spot.

5. The aforesaid judgment and order of Sub-Divisional Magistrate was challenged by Satish Chand Sharma by filing a revision before the learned Sessions Judge, who himself inspected the spot on 5.9.2003 at 5 pm and thereafter, vide impugned his judgment and order dated 6.9.2003, he quashed the judgment and order of Sub-Divisional Magistrate dated 3

14.7.2003. Feeling aggrieved, Dr. Sukhdev Sharma has come up in revision before this Court.

6. Learned Counsel for the revisionist very fairly admitted that after issuance of the conditional order by the Sub-Divisional Magistrate, Satish Chand Sharma, owner of the weighing machine centre, put in his appearance before the court below and show-caused against the said conditional order. As such, it was incumbent upon the Sub-Divisional Magistrate to conduct an enquiry and take evidence in the matter as in a summons-case. The mandate to this effect is provided under Section 138 CrPC, and subsequent procedure, which should have been adopted by the learned Magistrate, is envisaged under Section 254 CrPC.

7. In the instant case, the learned Sub-Divisional Magistrate has not heard the prosecutors nor has asked them to produce their evidence in support of their application, which they moved making the allegation of nuisance in surrounding area of the weighing machine centre. So, the procedure, which ought to have been taken care of, has been ignored by the learned Magistrate.

8. Learned Counsel for the revisionist has argued that the revisionist Dr. Sukhdev Sharma should also be given opportunity to produce the oral or documentary evidence, if any, before the Sub-Divisional Magistrate, who passed his judgment and order after filing of the affidavits by Satish Chand Sharma and his witnesses Vinay Kaushik and Mumtaz Ali without giving the complainants opportunity of their cross- examination. Obviously, these witnesses, who submitted their affidavits before the court below, should have been summoned 4 to produce themselves for cross-examination by Dr. Sukhdev Sharma. It has also not been done.

9. As far as local inspection of the spot by learned Sessions Judge is concerned, it is pertinent to mention that the same was done on 5.9.2003 at 5 pm, which happens to be the time when all such vehicles finally leave the weighing machine centre. So, the spot inspection did not yield any purposeful result and the allegations made by the revisionist Dr. Sukhdev Sharma could not be verified. Such an inspection of the spot would have been made at some appropriate time i.e. before noon because that happens to be the time of maximum nuisance as alleged by the revisionist.

10. For the reasons recorded above, this revision has force and is liable to be allowed. The revision is, accordingly, allowed. The impugned judgment and order dated 6.9.2003, passed by the learned Sessions Judge, Haridwar in Criminal Revision No. 324/2003 as well as the judgment and order of the Sub-Divisional Magistrate dated 14.7.2003, both are hereby quashed. The matter is remanded back to the Sub-Divisional Magistrate with direction to pass the order afresh in the light of the observations made hereinabove after recording the evidence and giving the opportunity of hearing to both the parties.

11. Let a copy of this judgment and order be sent to the court below for compliance. Lower court record be sent back. (Servesh Kumar Gupta, J.)

14.3.2012 Prabodh