The main legal point established in the judgment is the importance of taking evidence to determine if an alleged nuisance is injurious to the community before making a final decision under Section 133 (1) (b) of the Code of Criminal Procedure.

LAKSHMANA RAO, J.

( 1 ) THIS Criminal Misc. Petition is directed against the order dated 25-11-2002, passed by the learned 1st Additional sessions Judge, Deoghar, in Cr. Revision No. 224 of 2001, whereby and whereunder he has set aside the order under revision, holding that it is not a public nuisance, as defined under Section 133 (l) (b) of the Code of criminal Procedure (in short cr. P. C. ). The said Cr. Revision was preferred by Opp. party no. 2, against the order dated 24-8-2001, passed in Misc. Case No. 152 of 2000, whereby, the learned Sub-Divisional Magistrate, Deoghar, started a proceeding under Section 133 (l) (b) of the Code of Criminal Procedure.

( 2 ) PETITIONER, Bhola Prasad Deo informed in writing to the learned Sub-Divisional magistrate, Deoghar, which resulted in institution of Misc. Case No. 152 of 2000 under Section 133, Cr. P. C. against Opposite party No. 2, Gautam Bhattacharjee, alleging therein, inter alia, that Opposite Party no. 2, Gautam Bhattacharjee is running a poultry Farm business in the first floor of his house, creating air pollution and nuisance to the general public of the locality. It is further alleged that he has not obtained any valid licence for running the said Poultry Farm business either from the Pollution control Board or the Government Organisation. He being the next door neighbour, his rooms are very close to the said Poultry f. orm, being run by Opp. Party No. 2 (Gautam Bhattacharjee ). As such, due to worst type of foul smell, coming out of the poultry Farm, petitioners life has been put in a great discomfort. The learned S. D. M. found that Opp. party No. 2 was running poultry Farm business on the upper floor of his house. The area is a residential colony and due to running of the said Poultry Farm business, foul smell is spreading, endangering their life. Considering this nuisance, he ordered to start a proceeding under Section 133, Cr. P. C. , holding that under such situation, the ingredient of public place is not strictly to be followed whereas the learned 1st Additional Sessions Judge set aside that order, only on the ground that the Poultry farm was being run on the first floor of Opp. party No. 2, namely, Gautam Bhattacharjee, which is his private house and not a public place.

( 3 ) ASSAILING the said order of the learned 1st Additional Sessions Judge, passed in Cr. Revision No. 224 of 2001, learned counsel for the petitioner Bhola Prasad Deo has submitted that the learned 1st Additional sessions Judge, Deoghar, has erred in setting aside the order, passed by the learned sub-Divisional Magistrate, Deoghar, in Misc. Case No. 152 of 2000, ordering initiation of a proceeding under Section 133, Cr. P. C. The learned Sub-Divisional Magistrate has only passed an order for Initiation of a proceeding, so that evidence may be collected before passing a final order regarding removal of the Poultry Farm, which is situated in a thickly populated residential colony in the heart of Deoghar Town. By the inpugned order, the learned 1st Additional sessions Judge, Deoghar, has closed the case without giving opportunity to the parties to adduce evidences for coming to a just decision in the case, only on the opinion that nuisance, not being a public nuisance, ingredients of public nuisance are not made out in the complaint. He further submits that without taking evidence, it cannot be said as such and hence the order of the learned 1st Additional Sessions Judge is bad in law and is fit to be set aside. The learned sub-Divisional Magistrate has passed the orders rightly for initiating a proceeding under Section 133 (l) (b), Cr. P. C. , which reads as follows :"conditional order for removal of nuisance : (1) Whenever a District Magistrate or a Sub-Divisional Magistrate or any other executive Magistrate specially empowered in this behalf by the State Government, on receiving the report of a police officer or other information and on taking such evidence (if any) as he thinks fit, co