S. G. SHAH, J. – Heard learned Advocate Mr. B. K. Raj, for the applicant and Mr. D. M. Shah, learned Advocate for respondent No.2, whereas, learned A.P.P. Mr. N. J. Shah represents respondent No. 1-State.

2. Petitioner herein is the original complainant. She has filed a complaint on 4-9-2004 before the Sub-Divisional Magistrate (hereinafter referred to "as S.D.M.") of Dabhoi alleging that activities by respondent No.2 at first floor of House No. 4/13/26-1 is creating public nuisance by running a small Papad ("an eatable item can be termed as thin crisp cake made of flour mixed with Urad and spices, normally served with meal") Manufacturing unit. It is further alleged that respondent No. 2 is creating nuisance by grinding wheat and other grains during the day and she has engaged 20-25 persons, who regularly works at the given place in different shifts, and thereby, respondent No. 2 is doing manufacturing and commercial activities in a residential house and because of running the grinding machine throughout the day, respondent No.2 is creating public nuisance in the form of noise as well as in the form of different activities by 20-25 labourers in a residential area. It is also alleged that because of such manufacturing unit, it creates typical smell and other hazardous effects like smoke etc. It is further alleged that because of the running of the grinding machine for a long time within residential area will result into cleft in walls and ceiling etc. Thereby, security and safety of the building in question has been deteriorated. It is also contended that such nuisance would result into High Blood Pressure, Diabetes and several other sickness and disease to all occupants of adjoining and nearby properties. Therefore, petitioner has requested the respondent No. 1 to initiate proceedings under Sec. 133 of the Cr.P.C. and to pass appropriate order to stop such nuisance.

3. On perusal of record, it becomes clear that S.D.M., Dabhoi had inquired into the matter and recorded statements of more than 10 persons including the petitioner as complainant and came to the conclusion that the activities by respondent No.2 is certainly creating nuisance, and therefore, by his reasoned order dated 28-6-2007, directed respondent No.2 to, remove and not to install the automatic machine for manufacturing of Papad etc. at the given place. Such order and judgment under Sec. 133 of the Cr.P.C. in Case No.2 of 2004 was challenged by the respondent No.2 before the Sessions Court, Vadodara under Sec. 397 of the Cr.P.C. The learned Sessions Judge has; vide his order and judgment dated 4-7-2008, in Criminal Revision Application No. 219 of 2007; came to the conclusion that the order of the S.D.M., Dabhoi in Case No.2 of 2004 is beyond the scope of Sec. 133 of the Cr.P.C., and therefore, quashed and set aside said order. Perusal of such judgment makes it clear that for coming to such conclusion, the learned Sessions Judge has mainly relied upon the judgment of this Court, in the case of Branch Manager, Vijya Bank v. State of Gujarat, reported in 1998 (2) GLR 1004. The learned Sessions Judge has also held that complaint filed by the present petitioner is for individual discomfort or individual damage to her, which cannot be said to be a public nuisance.

4. However, after considering the rival submissions and perusing the material available on record, I am unable to agree with the findings, determination and conclusion by the learned Sessions Judge for several reasons.

5. It seems that the learned Sessions Judge has failed to consider the fact that volume of evidence is not material but contents, nature and authenticity of evidence is material for coming to a particular conclusion. Inasmuch as though the learned Sessions Judge has referred the statement and affidavit of some persons, wherein, there is clear statement that the machine in dispute is creating noise and heavy vibrations, which effects the health of the persons residing in the area and tha