SHAKIL Vs. GOPAL VISHWAKARMA

JUDGEMENT

(1.) The instant petition under Sec. 482 of CrPC is directed against the impugned order dtd. 08/07/2019 (Annexure P/1) passed by the Additional Sessions Judge (FTC), Baikunthpur in Criminal Revision No. 16/2018 by which the revision filed by respondent No. 1, against the order dtd. 25/02/2019 (Annexure P/2) passed by the Sub-divisional Officer, Baikunthpur in Misc. Cri. Case No. 1/2019 directing respondent No. 1 for removal of nuisance, has been allowed by setting aside the order passed by the Sub-Divisional Officer, Baikunthpur.

(2.) Petitioner herein filed an application under Sec. 133(1) of CrPC before the Executive Magistrate, Patna, Tahsil Baikunthpur, Distt. Koriya stating inter alia that respondent No. 1 is operating cement shop and running fabrication work in the neighborhood of the residential area where the petitioner is residing and the act of respondent No. 1 creates nuisance as well as sound and air pollution which is endangering life. The Executive Magistrate, Patna registered the case under Sec. 133 of CrPC and after enquiry placed the matter before the Sub-divisional Officer, Baikunthpur along with his report for hearing and disposal in accordance with law. The Sub-divisional Officer, Baikunthpur, on the basis of the report dtd. 25/02/2019, passed order dtd. 25/02/2019 (Annexure P/2) holding that the act of respondent No. 1 falls under the category of nuisance as defined under Sec. 133 of CrPC and thereafter, directed respondent No. 1 to shift his shop to a non-residential area. The order dtd. 25/02/2019 (Annexure P/2) was challenged by respondent No. 1 in revision wherein the Additional Session Judge, Baikunthpur set aside the order passed by the Sub-divisional Officer, Baikunthpur holding it to be bad in law as no preliminary order has been passed in terms of Sec. 131(1) of CrPC in view of the decision rendered by the Supreme Court in the matter of Avarchan v. C.V. Sreenivasan and Ors. (1996) 7 SCC 71 and allowed the revision by order impugned dtd. 08/07/2019 (Annexure P/1), which has been called in question by the petitioner.

(3.) Mr. Ashok Kumar Shukla, learned counsel for the petitioner, would submit that the impugned order (Annexure P/1) suffers from illegality and perversity and as such, it is liable to be set aside.