SHAUKAT HUSSAIN Vs. SHEODAYAL SAKSAINA

JUDGEMENT

(1.) THE applicants work a small cotton carding machine of five horse power in mohalla Gajrat Khana Katra in the town of Rewa. The non-applicant filed an application in the Court of the Additional District Magistrate, Rewa, alleging that the small particles of cotton are blown in the air from the machine and cause harm to breathing and that the machine also produces noise and disturbance to public peace; so it must be stopped. This application has been granted by the Court below. The present petitioners have been asked to stop the working of the machine. The Court below has also gone beyond its jurisdiction under Section 133 of the Code of Criminal Procedure in issuing an order to the Municipality that the licence granted to the petitioners must be cancelled. The petitioners have come in revision to this Court against the order passed by the Additional District magistrate, Rewa.

(2.) THE non-applicant raised an objection that, unless the petitioners had applied to the Sessions Court, a revision cannot be entertained under Rule 15, Chapter 4 of the Madhya Pradesh High Court Rules. I understand that this objection was raised at the time of the admission of the revision, but it was overruled. I am of opinion that the High Court should not ordinarily interfere when a party does not exhaust his remedy by applying to the Sessions Court; but at the same time it is difficult to overlook the provisions of the Code of Criminal Procedure. The jurisdiction conferred by the Code on the High Court under Sections 435 and 439 is very wide and it should not be fettered by any hard and fast Rule. 1 am fortified in this view by certain rulings; e. g. reported in Basavana Gowd v. Krishna Rao Naidu, AIR 1916 Mad 713 (A); Bihar Municipality v. Mt. Ramnandi Kuer, AIR 1941 Pat 548 (B), and Suraj Bali v. Emperor, AIR 1942 Oudh 438 (C ).

(3.) AS regards the merits of the case, it would be sufficient to state that the learned magistrate has not cared to see that Chapter X of the Code of Criminal Procedure deals with 'public Nuisances', and not with private nuisances. The remedy for the latter is a civil suit, although what constitutes nuisance may be common to both classes. Section. 133 of the Code of Criminal Procedure provides a speedy and summary remedy in case of urgency where danger to public interest or public health is concerned. In all other cases the party should be referred to the remedy under the ordinary law. Paragraph 3 of Section 133 runs as follows :