An order under Section 133 of the Criminal Procedure Code can only be passed if the conduct of the trade or occupation is injurious in presenti to the health or physical comfort of the community, and that a distant possibility of an injury to the health or physical comfort of the community would not justify such an order.

Headnote:
CRIMINAL PROCEDURE CODE - SECTION 133 - SUMMARY DISMISSAL OF REVISION APPLICATION - SUBSEQUENT REVISION APPLICATION - SCOPE OF SECTION 133 - INJURY TO HEALTH OR PHYSICAL COMFORT OF COMMUNITY - IMMINENT DANGER - DISTANT POSSIBILITY OF DANGER - ORDER UNDER SECTION 133 NOT JUSTIFIED.
Fact of the Case:

The petitioner, owner of a flour mill, challenged an order passed under Section 133 of the Criminal Procedure Code, directing him to remove the mill within two months or show cause why the order should not be enforced. The order was passed on the complaint of the opponent, who alleged that the operation of the mill caused vibrations and was likely to cause danger to the surrounding houses.
Finding of the Court:

The court found that the order passed by the Sub-Divisional Magistrate was not justified under Section 133 of the Criminal Procedure Code. The court held that the section contemplates an order prohibiting or regulating a trade or occupation only if it is injurious to the health or physical comfort of the community, and that a distant possibility of an injury to the health or physical comfort of the community would not justify such an order. The court further held that the Sub-Divisional Magistrate did not find any immediate danger to the health or physical comfort of the people living in the locality, but only envisaged a very distant possibility of a danger being caused to the surrounding houses.
Issues: 1. Whether the order passed by the Sub-Divisional Magistrate was justified under Section 133 of the Criminal Procedure Code? 2. Whether the operation of the flour mill caused any injury to the health or physical comfort of the community?
Ratio Decidendi: The court held that an order under Section 133 of the Criminal Procedure Code can only be passed if the conduct of the trade or occupation is injurious in presenti to the health or physical comfort of the community, and that a distant possibility of an injury to the health or physical comfort of the community would not justify such an order. The court further held that the Sub-Divisional Magistrate did not find any immediate danger to the health or physical comfort of the people living in the locality, but only envisaged a very distant possibility of a danger being caused to the surrounding houses. Therefore, the order passed by the Sub-Divisional Magistrate was not justified under Section 133 of the Criminal Procedure Code.
Final Decision: The court set aside the order passed by the Sub-Divisional Magistrate and allowed the petitioner's application.

JUDGMENT - 1. This is an application filed by the applicant against the order passed by the learned Additional District Magistrate, East Khan-desh, dismissing his revision application preferred against the order passed by the learned Sub-Divisional Magistrate, Amalner Division, allowing the application made by opponent No. 1 by which ho claimed reliefs under Section 133 of the Criminal Procedure Code.

2. It appears that on 21-11-57 Opponent No. I Onkar Vyankat Patil, applied to the District Magistrate, East Khandesh at Jalgaon complaining that the flour mill owned by the petitioner Murlidliar Bhila Patil and which was installed close to his house was a cause of nuisance to him as also to the other residents in the locality. He alleged that the operation o£ the flour mill created vibrations and those vibrations were likely to cause danger to the people residing nearby.

3. After due enquiry into the allegations made by the Opponent No. 1, the Additional Dis-trict Magistrate, East Khandesh at Jalgaon forwarded the papers of the case to the Sub-Divisional Magistrate, Amalner Division for taking action. under Section 133 of the Criminal Procedure Code. Proceedings under that section, accordingly, were started and a conditional order directing the flour mill owner to remove the mill within a period of two months or to appear before the Sub-Divisional Magistrate, Amalner Division, to show cause why that order should not be enforced was issued on 14-8-58. The petitioner appeared before the learned Sub-Divisional Magistrate and pleaded that he did not want to remove the flour mill as directed by the order in as much as according to him the working of his mill did not cause any nuisance as alleged.

4. The learned Sub-Divisional Magistrate, therefore, proceeded further with the case and both the applicant as well as the opponent (the present petitioner) led evidence of witnesses in support ot (heir respective contentions. The witnesses, who gave evidence on behalf ot the owner of the flour mill i.e. the opponent, asserted that the operation, of the mill did not cause any nuisance to the residents of the surrounding houses and also that it was not detrimental to the comfort of the people in the locality. The witnesses, who were examined on behalf of the applicant, on the other hand, deposed that the operation of the mill did create a nuisance to the surrounding houses and the people living therein.

5. In that state of the evidence, the learned Sub-Divisional Magistrate found it difficult to decide the truth or otherwise of the allegations made by the applicant in his application, and in view thereof he decided to take a personal inspection of the site, because he thought that he could not come to a proper decision unless he personally inspected the site. Accordingly, he visited the site on 19-3-1959 when the flour mill was actually in Operation and found that jerks were caused due to the working of the flour mill to the surrounding houses within an area of 100 feet. In view ot this finding the learned Sub-Divisional Magistrate observed in his order dated 1st May, 1959 as follows :

"I am therefore, satisfied that the case of the complainant is a genuine one and there is possibility of danger being caused to the surrounding houses and that in public interest it is necessary to enforce the conditional order dated 14-8-59."

Accordingly, he made the order absolute under Section 137(3) of the Criminal Procedure Code.

6. Against that order, it appears, the present petitioner instead of going to the District Magistrate came to this Court by a revision application dated 25th May, 1959. That application was, however, summarily dismissed by this Court on 29th May, 1959. On 1-6-1959, the petitioner filed a revision application in the Court of the District Magistrate, East Khandesh, against that very order, and it was heard and decided by the learned Additional District Magistrate, East Khandesh. The learned Additional District Magistrate, as it appears from

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