GOPAL SAHA Vs. UTTAM SAHA

JUDGEMENT

(1.) This criminal petition is directed against the judgment and order dated 28-11-2011 passed by the learned Additional Sessions Judge (FTC), Barpeta in Criminal Revision No. 13/2010 upholding the order dated 30-6-2010 passed by the learned Sub-Divisional Magistrate/Barpeta in Case No. 27/06 U/s 133 of the Code of Criminal Procedure ("the Code" for short) directing the petitioner not to operate his oil mill from 7 AM to 7 PM.

(2.) The facts giving rise to this petition may be noticed at the outset. The petitioner is operating a mustard oil mill near the house of the respondent No. 1. According to the respondent No. 1, this oil mill is located in a residential area and started its operation from 10 AM till late night causing inconvenience to him and other inhabitants of the area. This prompted the respondent No. 1 to file a petition before the Executive Magistrate, who, on 25-11-2005, forwarded it to the Officer-in-Charge, Sarbhog Police Station for conducting an inquiry and report, but no action was taken by the police. The respondent No. 1, therefore, informed the Additional Deputy Superintendent of Supplies to take action in this regard since the matter is under the Department of Civil Supplies, but when no action was taken, he approached the District Magistrate, Barpeta to initiate against the petitioner U/s 133 CrPC. Accordingly, a case being No. 27/2006 U/s 133 CrPC was registered. The petitioner contested the case and denied the allegations of the respondent No. 1. The petitioner contended in his written statement that the mill in question was established in his own land, which was not in a residential area, but is in a purely commercial area abutting NH-31 where heavy vehicles ply day and night thereby causing noise in larger volume than that of the noise produced by the sound of his oil mill. The learned Sub-Divisional Magistrate, Barpeta, after examining the witnesses produced on behalf of both the parties, passed the order dated 30-6-2010 directing the petitioner to operate the Oil Mill only between 7 AM and 7 PM. As already noticed, the revision petition preferred by the petitioner was dismissed by the learned Additional Sessions Judge, Barpeta by the impugned judgment and order.

(3.) Aggrieved by the decision of the learned Additional Sessions Judge (FTC), this criminal petition is filed by the petitioner. At the outset, Mr. A. Goyal, the learned counsel for the respondent No. 1, raises preliminary objection against the maintainability of this petition on the ground that this petition, though camouflaged as a criminal petition, is actually a revision petition under Section 397 CrPC, which is barred by Section 397(3) CrPC. He, therefore, submits that the second criminal revision under the guise of criminal petition is not maintainable and is liable to be dismissed: what cannot be done directly cannot be done indirectly. On the other hand, Mr. P. Upadhyay, the learned counsel for the petitioner, contends that even if this criminal revision is assumed to be a second criminal revision also, there is no complete prohibition of a second revision petition under Section 397(3) and in appropriate cases, the bar imposed by Section 397(3) can be lifted by the High Court by invoking Section 482 CrPC. He strongly relies on the decision of the Apex Court in Shakuntala Devi and others v. Chamru Mahto and others, 2009 3 SCC 310 and Krishnan & another v. Krishnaveni and another, 1997 4 SCC 241 to buttress his contention. In my opinion, this preliminary objection need not detain us in view of the decision of the three-Judge Bench of the Apex Court in Krishnan and another , the relevant paragraph whereof is at paragraph 10 of the judgment, which reads thus: