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High Court Of Calcutta
D. K. SEN
K.L.(P) LTD. - Appellant
Versus
MUNICIPAL COMMISSIONERS OF KAMARHATI MUNICIPALITY - Respondent
C. O. 3809 (W) Of 1980
Decided On : 02/10/1984
CRIMINAL PROCEDURE CODE - SECTIONS 133, 136, 137, 138, 141 - INTERPRETATION AND APPLICATION - EXECUTIVE MAGISTRATE'S ORDER UNDER SECTION 133 - JURISDICTION AND PROCEDURE - JUDICIAL REVIEW - HIGH COURT'S POWER TO QUASH ORDER - PUBLIC NUISANCE - INQUIRY AND EVIDENCE REQUIRED - INTERFERENCE WITH CRIMINAL PROCEEDING - WHEN JUSTIFIED.
Fact of the Case:
The petitioner, a chemical factory, challenged a notice issued by the Vice-Chairman of the Kamarhati Municipality under Section 452 of the Bengal Municipal Act, alleging injurious gases and offensive trade refuse causing public health and pollution. During the pendency of the writ petition, the Executive Magistrate initiated criminal proceedings under Section 133 of the Code of Criminal Procedure, alleging public health hazards and pollution from the factory. The petitioner sought to quash the criminal proceedings, alleging mala fide and arbitrary action.
Finding of the Court:
The High Court held that the Executive Magistrate's order under Section 133 was flawed and without jurisdiction. The Magistrate failed to follow the proper procedure under Sections 137 and 138 of the Code, which required an inquiry and evidence before passing a final order. The Magistrate also erred in directing a complaint under Section 188 of the IPC without issuing a proper notice to the petitioner.
Issues: 1. Whether the High Court could interfere in a criminal proceeding where the Code of Criminal Procedure provided adequate alternative reliefs. 2. Whether the Executive Magistrate had jurisdiction to proceed under Section 136 of the Code without following the procedure under Sections 137 and 138. 3. Whether the Magistrate's order was vitiated by errors apparent on the record.
Ratio Decidendi: 1. The High Court has the power to interfere in a criminal proceeding under Article 226 of the Constitution if the Magistrate's order is without jurisdiction or suffers from errors apparent on the record. 2. The Executive Magistrate was required to follow the procedure under Sections 137 and 138 of the Code, which mandated an inquiry and evidence before passing a final order. 3. The Magistrate's order was vitiated by errors apparent on the record, including the failure to inquire into the existence of a public right, the failure to take evidence, and the improper direction for a complaint under Section 188 of the IPC.
Final Decision: The High Court set aside the Executive Magistrate's final order under Section 136 of the Code and directed that the case be proceeded with in accordance with law.
( 1 ) MESSRS. K. L. (P) Limited, the petitioner No. 1, has been manufacturing sodium dichromate and sodium sulphate at its factory at 64/2, Old Nimta Road, P. S. Belgharia, Calcutta-56 since 1976 under licence from the Kamarhati Municipality.
( 2 ) ON Sept. 10, 1979 a notice was issued by the Vice-Chairman of the Kamarhati Municipality under S. 452 of the Bengal Municipal Act, 1932 alleging, inter alia, that injurious gases and vapour are being generated at the factory, in the process of manufacture, causing danger to public health and that offensive trade refuse was allowed to run causing pollution to a public tank. The notice further directed the petitioner No. 1 to close the said factory within 30 days from the date of receipt thereof.
( 3 ) THE petitioner No. 1 and one of its directors challenged the said notice by a writ petition where a rule nisi was issued on Jan. 19, 1980 and an ad interim order restraining the Municipal Authorities from giving further effect to the impugned notice was passed.
( 4 ) DURING the pendency of the above rule marked C. R. No. 10362 of 1979 the Executive Magistrate, Barrackpore, 24 Parganas initiated proceedings under S. 133 of the Code of Criminal Procedure marked Case No. M/458/79 and a notice, dt. Nov. 26, 1979 was issued by the said Executive Magistrate as follows :"whereas it has been made to appear to me that you are running a Chemical Factory styled as M/s. K. L. (Pvt) Ltd. , at Sukumar Ghosh Road, Nandannagar in Belgharia P. S. and the same is injurious to public health as the obnoxious gases, injurious dust and smoke and pungent smell emanating from the Factory are causing serious threats to the health of the inhabitants of the contiguous locality and the Chemical Wastages of the Factory are also polluting the water of a Public tank in the neighbourhood and as such the Factory should be closed down or removed to a different place. I do hereby direct and require you within a month from the date of receipt of this order by you to cease functioning of this Factory at the said place or to remove the said factory from the place where it is now situated or to appear before this Court on 27-12-79 and show cause why this order should not made absolute and enforced".
( 5 ) IT is alleged that the petitioner No. 1 received the said notice on Sept. 10. 1979. On April 11, 1980, the present application was moved by the petitioner No. 1 and its Director Sri Madhav Prosad Goenka the petitioner No. 2 against the Commissioners of the Kamarhati Municipality, the Vice-Chairman of the Municipality and the said Executive Magistrate, Barrackpore, 24 Parganas, for quashing the said criminal proceedings, when an order was passed staying the said criminal proceedings.
( 6 ) THE petitioners allege that in spite of the pendency of the earlier rule the Vice-Chairman of the Municipality requested the Sub-Divisional Officer, Barrackpore, 24 Parganas to take action against the petitioner No. 1 for causing nuisance and injury to the public health on the basis of the complaints filed and that without hearing the petitioners the said criminal proceedings were initiated. It is alleged that there was no material or bona fide information on which the Executive Magistrate could proceed and that the said proceedings were mala fide and arbitrary. It is a matter of record that by an order passed on May 5, 1980 the State of West Bengal was added as a respondent to this application.
( 7 ) AN affidavit affirmed by the Vice Chairman, the respondent No. 2, has been filed in opposition to this petition. It is, inter alia, alleged in the said affidavit that a mass petition dated Nov. 1, 1979 containing 154 signatures was addressed to the Sub Divisional Officer, Barrackpore and a copy of another mass petition, dt. Oct. 19, 1979 was received through the Minister concerned. The Executive Magistrate after considering the said petitions as also the enquiry report of the Officer-in-Charge of the local Police Station d
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