LAWS(P&H)-1984-10-38

GOBIND ALUMINIUM WORKS Vs. OM PARKASH GUPTA

Decided On October 11, 1984
Gobind Aluminium Works Appellant
V/S
OM PARKASH GUPTA Respondents

JUDGEMENT

(1.) THIS petition under section 482 of the Code of Criminal Procedure (hereafter called 'the Code') has been filed by the petitioner firm known own as Gobind Aluminium Works for quashing the complaint dated 31st of January, 1984 (Annexure P. 6) of the respondent Om Parkash Gupta as well as the orders passed in pursuance thereof by the Sub -Divisional Magistrate, Hissar, dated January 31, 1984 (Annexure P. 7) and dated June 30, 1984 (Annexure P 9).

(2.) THE respondent Om Parkash Gupta filed the complaint (Annexure P. 6) under section 133 of the Code in the Court of the Sub -Divisional Magistrate, Hissar, alleging that the petitioner firm had installed a factory in a house adjacent to his own house which is causing public nuisance as the working of the factory produces loud noise which is detrimental to the physical and mental well -being of the inhabitants of the locality and further that the smell and gas produced by the acids used in the factory has polutted the atmosphere. On these allegations it was prayed that the petitioner's factory may be ordered to be close. In pursuance of this complaint the Sub -Divisional Magistrate, Hissar, served a conditional order (Annexure P.7) under section 133 of the Code upon Shri Murari Lal, owner of the petitioner firm, directing him to close the factory within a fortnight or to appear before him on 15th of February, 1984, to show cause why this conditional order should not be made absolute. Consequent upon this order Shri Murari Lal appeared before the Sub -Divisional Magistrate, Hissar, and contested the complaint of Om Parkash Gupta. Thereupon the Sub -Divisional Magistrate passed order dated June 30, 1984 (Annexure P.9) under section 137 of the Code giving him opportunity to produce evidence to prove the denial of the existence of public right in respect of the factory.

(3.) THE contention of the petitioner's counsel is that the provisions of section 137 of the Code are not applicable to the present case and, therefore, the Sub -Divisional Magistrate erroneously ordered the petitioner firm to produce evidence to prove the absence of public nuisance. It is submitted that the Sub -Divisional Magistrate after issuing the conditional order under section 133 of the Code should have proceeded under section 139 of the Code considering this case to be a summons case. This contention appears to be well founded.