JAMJAM FAST FOOD Vs. VINAY MALAIYA

JUDGEMENT

(1.) This M.Cr.C under Section 482 Cr.P.C has been preferred by the petitioner to quash the order dated 10.04.2018 in Cr.R No. 36/18 passed by 3rd ASJ, Sagar, arising out of order dated 21.02.2018 in Criminal case No. 02/2017 passed by City Magistrate, Sagar whereby the learned Magistrate has passed the order to close the trade. The learned Revisional Court has also affirmed the order of learned Magistrate.

(2.) According to case, on 09.02.2017, respondent No. 1 has filed an application under Section 133 Cr.P.C before City Magistrate, Sagar stating that the complainant belongs to Jain community and non-violence lover. The petitioner has illegally occupied the land of main road and has established meat market which hurts religious feelings of the complainant and other people. On the same day, the learned City Magistrate has passed the interim order and issued notice to the petitioner to file the reply. Thereafter, the petitioner has filed his reply (Ex. A-3) and vide order dated 21.02.2018, the learned City Magistrate has passed the order in favour of the respondent No.1. Being aggrieved by the order of learned City Magistrate, the petitioner has preferred a revision petition before 3 rd ASJ, Sagar which also met to dismissal vide order dated 10.04.2018.

(3.) Learned counsel for the petitioner submits that the judgment passed by the Court's below are bad in law and deserves to be set aside. He submits that the learned trial Court failed to appreciate the fact that the application filed by the respondent No. 1 is not maintainable as the case of petitioner does not come under the category of "nuisance". The definition of nuisance is defined under Section 268 IPC and no single element of it, found in the case of petitioner. The Courts below have also not decided the locus standi of the respondent No.1 who filed the application under Section 133 of Cr.P.C. Further, it is obligatory on the Magistrate to take evidence in the matter as in a summons case but the Magistrate over looks the same. He submits that there is no documentary evidence showing the public nuisance by the petitioner moreover the Magistrate has passed the order even without calling the report of police officer and under the defective notice given to the petitioner. He submits that the interim order can not be passed without hearing the opposite party but the learned City Magistrate committed grave error of law in passing the same. Further, a license has been issued to the petitioner by the Municipal Corporation, Sagar to run his shop. The petitioner is running his Biryani shop for last five years as per the terms and conditions of the licence given by Food Department upto the year 2020. The respondent No.1 for his own reason, wants to remove the said market from the notified area because he has chunk of land with godown adjoining to meat market. He further submits that the notice is given by the Municipal Corporation, Sagar after passing the order by City Magistrate. The learned Court's below has given erroneous finding that the petitioner does not have license for running the shop. The business of the petitioner of cooked biryani is not injuries to anyone. In support of his contention, he has relied upon the various pronouncement of the Hon'ble Apex Court as well as High Courts, same are mentioned here in under :-