JAYAKRISHNA PANIGRAHI Vs. HRUSIKESH PANDA

JUDGEMENT

(1.) This case has been referred to a Division Bench by a learned single Judge of this Court as there was divergence of views with regard to interpretation of Section 133 of the Code of Criminal Procedure.

(2.) In the case of Khetrabasi Patnaik v. State (1966) 32 CLT 991, a learned single Judge came to the conclusion that where an old coconut tree leans towards the court-yard of the complainant and there is apprehension of danger to the human life, a Magistrate would have jurisdiction to entertain an application under Section 133 of the Code of Criminal Procedure as the nuisance would amount to a public nuisance. In Gayasundari Devi v. Jagannath Nayak, 55 (1983) CLT 110 : (1983) Cri LJ (NOC) 69 (Orissa), a learned single Judge of this Court came to hold that Section 133 of the Code of Criminal Procedure would apply only when a public nuisance is caused and would not apply where the apprehension is confined to damage to a particular individual. In Lalmohan Patnaik v. Harihar Tripathy, (1970) 36 CLT 148, another learned single Judge was of the opinion that Section 133, Cr. P. C. is intended to protect the public as a whole against any inconvenience and the same is not intended to settle any private dispute between different members of the public. In Gayasundari's case as well as Lalmohan Patnaik's case, referred to supra, Ketrabai Patnaik's case has not been noticed. In the case in hand our learned brother Justice v. Gopalaswamy, as he then was, accepted the view taken by this Court in Khetrabai Patnaik's case but on account of divergence of views between the learned single Judge of this Court as stated earlier thought it appropriate to refer the matter to a larger Bench. The question that arises for consideration is whether the provisions of Section 133, Cr. P. C. can be invoked for removal of "public nuisance" or it can be invoked for removal of 'nuisance' enumerated in different clauses of sub-section (1) of Section 133, Cr. P. C.

(3.) The petitioners are the second party members. The Sub-Divisional Magistrate, Cuttack called upon the petitioners to show cause as to why one of their palm trees which is close to the house with asbestos roof of the first party, opposite party in the Misc. Case, will not be cut as danger is apprehended to the inmates of the house on account of the overhanging and leaning of the said palm tree belonging to the petitioners. Instead of showing cause, the petitioners challenged the maintainability of the proceedings before the learned Sessions Judge, inter alia, on the ground that danger apprehended to the members of the first party does not constitute public nuisance and, therefore, an application under Section 133, Cr. P. C. is not maintainable. The learned Sessions Judge came to the conclusion that on the facts and circumstances of the case an application under Section 133, Cr. P. C. is maintainable but as there had been failure of compliance of mandatory requirements under Sec. 141 (2), Cr. P. C., the learned Sessions Judge quashed the order of the Magistrate dated 4-1-1981 and remitted the proceedings to the S.D.M., Cuttack with the direction that he should comply with the requirements of law as contained in Section 141 or any other provision as is applicable to the facts and circumstances of the case. Being aggrieved by the said order, the petitioners have approached this Court, inter alia, on the ground that a proceeding under Section 133, Cr. P. C. is not at all maintainable.