Bench: Justice D.C. Srivastava
Whether a direction can be given under Section 133 by the magistrate, if the nuisance is not deteriorating public sanctity?
A revision petition was filed by Ramachandra Malojirao Bhonsle in Gujrat High Court aggrieved by the order passed by the lower Court. The Revisionist bought a flat, Water pump was installed by the Builder run by electricity for lifting water so as to make it reach to other flats in the complex. Nuisance was caused as the electric motor was used by different society member at their own convenience.
Ramachandra suggested shifting of motor so the same at such place which may not cause noise pollution.
It was also contended that there are certain cases where nuisance is created at a public place but, people affected by it may not come forward to move an application under sec. 133 of the Code of Criminal Procedure. In such situation, even one person who is aggrieved from such public nuisance at a public place may report the matter to the Court.
In the present case the Respondent argued that jurisdiction under sec. 133 of the Criminal Procedure Code can be exercised by the learned Executive Magistrate only in respect of public nuisance and not in respect of private nuisance.
It was held by the Gujarat High Court that the magistrate shall have to keep in mind that if the nuisance is not created at a public place no direction can be given under Section 133. Section 133 of the Code of Criminal Procedure provides that, "Whenever a District Magistrate or a Sub-Divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government, on receiving a report of a Police Officer or other information, and on taking such evidence as he thinks fit, considers that, any unlawful obstruction or nuisance should be removed from any public place. The order of the lower Court was set aside and revision petition was dismissed.