Criminal Procedure Code, 1973, S.

133, Water (Prevention and Control of Pollution) Act, 1974, Air (Prevention and Control of Pollution) Act, 1981 Industry Order u/s 133 Cr.P.C. for closure as industry was causing serious pollution by discharge of effluent High Court quashed proceedings holding provisions of Pollution Control Act impliedly repealed provisions of S.133 Cr.P.C. Held, view of High Court not correct Area of operation in Code and pollution laws in question is different with different aims and objects Both operated in their respective fields and there is no impediment for their existence side by side. (State of M.P. Vs Kedia Leather & Liquor Ltd. & Ors.) 2003(2) Apex Court Judgments 497 (S.C.) Criminal Procedure Code, 1973, S.133 Enquiry First party members adduced evidence whereas second party members did not produce any evidence No fault can be found with the order of Magistrate when he decided the case on the basis of evidence led in the case. (Jadunath Nayak Vs The SubCollector, Bhadrak & Ors.) 2004(1) Criminal Court Cases 11 (Orissa) Criminal Procedure Code, 1973, S.133 For operation of the provision it must be shown that the interference with public comfort was considerable and a large section of the public was affected injuriously. (Kachrulal Bhagirath Agrawal & Ors. Vs State of Maharashtra & Ors.) 2005(1) Criminal Court Cases 125 (S.C.) Criminal Procedure Code, 1973, S.133 Manufacturing unit adjacent to residential houses Unbearable sounds produced for cutting and bending of iron & steel Contention that unit was established under licence granted by District Industries Centre & that Magistrate did not himself visit site Order passed by Magistrate not only on report of police but on basis of evidence recorded before it No ground to interfere. (Birabhanu Mohapatra Vs Narendra Nath Mohanty & Ors.) 2004(4) Criminal Court Cases 301 (Orissa) Criminal Procedure Code, 1973, S.133 Nuisance Flour mill working in residential locality for the last 8-9 years prior to filing of complaint No action under the provision can be taken where the obstruction or nuisance is in existence for a long period and the only remedy open to the aggrieved party is to move civil Court. (Makhan Lal Vs Buta Singh) 2003(2) Criminal Court Cases 182 (P&H) Criminal Procedure Code, 1973, S.133 Nuisance Purpose of the provision is to prevent public nuisance and involves a sense of urgency It applies to a condition of the nuisance at the time when the order is passed and it is not intended to apply to future likelihood or what may happen at some later point of time It does not deal with all potential nuisances and on the other hand applies when the nuisance is in existence. (Kachrulal Bhagirath Agrawal & Ors. Vs State of Maharashtra & Ors.) 2005(1) Criminal Court Cases 125 (S.C.) Criminal Procedure Code, 1973, S.133 Nuisance Removal Local Inspection by Magistrate Cannot take the place of evidence itself and an absolute order cannot be passed merely on the basis of local inspection without recording evidence. (Ram Lal Vs State of Haryana) 2002(2) Criminal Court Cases 689 (P&H) Criminal Procedure Code, 1973, S.133 Order not to be passed solely on the report submitted by Officer-in-charge of Police station or the documents made available to Magistrate without holding an enquiry. (Jadunath Nayak Vs The Sub-Collector, Bhadrak & Ors.) 2004(1) Criminal Court Cases 11 (Orissa) Criminal Procedure Code, 1973, S.133 Proceedings are summary in nature Question of title to be decided by Civil Court. (Tulsi Ram Vs Roshan Lal)2003(1) Criminal Court Cases 137 (P&H) Criminal Procedure Code, 1973, S.133 Public nuisance Magistrate satisfied that installation of grinder for grinding spices and expeller for extracting oil causing discomfort to public Magistrate ordered closure of use of said machines No interference in revision. (Laxmi Chand Vs State of Rajasthan)

2005(2) Criminal Court Cases 58 (Rajasthan) Criminal Procedure Code, 1973, S.133 Public nuisance Provision does not apply to private nuisance Dispute between parties regarding ownership and possession of house and civil litigation pending Dispute does not involve public nuisance. (Smt.Sudhanarayan Vs Prem Phutela) 2003(1) Criminal Court Cases 396 (Rajasthan) Criminal Procedure Code, 1973, S.133 Question of title when required to be decided Magistrate to refer the matter to a Civil Court. (Jadunath Nayak Vs The Sub-Collector, Bhadrak & Ors.) 2004(1) Criminal Court Cases 11 (Orissa) Criminal Procedure Code, 1973, S.133 Second petition In earlier proceedings house in question held to be repairable and that dispute between parties was not covered by public nuisance Held, Magistrate has no jurisdiction to reopen matter on fresh application. (Smt.Sudhanarayan Vs Prem Phutela) 2003(1) Criminal Court Cases 396 (Rajasthan) Criminal Procedure Code, 1973, S.133 Community in clause (b) cannot be taken to mean residents of a particular house It means something wider, that is, the public at large or the residents of an entire locality. (Kachrulal Bhagirath Agrawal & Ors. Vs State of Maharashtra & Ors.) 2005(1) Criminal Court Cases 125 (S.C.) Criminal Procedure Code, 1973, Ss.133, 137 & 138 Encroachment of public street Finding of fact given after holding enquiry Cannot be interfered u/s 482 Cr.P.C. (Balwant Vs Jai Singh & Anr.) 2005(2) Criminal Court Cases 142 (P&H) Criminal Procedure Code, 1973, Ss.133, 138 Nuisance Poultry business Order to close down as poultry business was creating nuisance to the inhabitants of the locality Order quashed Magistrate has first to pass conditional order requiring the petitioner to close down the business or to show-cause as to why the conditional order should not be made absolute Then only, the procedure envisaged under S.138 of the Code should be followed. (Mahankali Yellaiah Vs State of Andhra Pradesh) 2002(1) Criminal Court Cases 508 (A.P.) Criminal Procedure Code, 1973, Ss.133, 138 Nuisance Removal Conditional order passed To make the conditional order final Magistrate has to record evidence in the manner of summons case It is not permissible to adduce evidence by way of affidavit Non compliance of S.138(1) would vitiate the entire proceedings. (Ram Lal Vs State of Haryana) 2002(2) Criminal Court Cases 689 (P&H) Criminal Procedure Code, 1973, Ss.133, 138 Nuisance Skins and bones of animals lying in the open which resulted into foul smell and pollution Conditional order made keeping in view the report of Pollution Control Board and Tehsildar-cum-Executive Magistrate and notice of appearance issued Pursuant to notice petitioner appeared but absented on the next date of hearing and filed no reply As a consequence thereof provisional order made absolute Held, there is no force in the contention that evidence was required to be recorded for passing the final order as report of Pollution Control Board and Tehsildar-cum-Executive Magistrate are sufficient to pass the final order without recording evidence. (Ram Lal Vs State of Punjab & Ors.) 2004(4) Criminal Court Cases 172 (P&H) Criminal Procedure Code, 1973, Ss.133, 138 Proceedings u/s 133 Cr.P.C. are summary in nature Order passed u/s 138 in a proceedings u/s 133 does not operate res judicata in case aggrieved party files civil suit to establish his right. (Balwant Vs Jai Singh & Anr.) 2005(2) Criminal Court Cases 142 (P&H) Criminal Procedure Code, 1973, Ss.133, 144 Distinction Provision of S.144 is general provision and S.133 is a more specific provision Order u/s 133 is conditional whereas order u/s 144 is absolute. (Kachrulal Bhagirath Agrawal & Ors. Vs State of Maharashtra & Ors.) 2005(1) Criminal Court Cases 125 (S.C.)

Criminal Procedure Code, 1973, Ss.133, 482 Public street Obstruction ordered to be removed It is a finding of fact which cannot be challenged in proceedings u/s 482 Cr.P.C. (Tulsi Ram Vs Roshan Lal)2003(1) Criminal Court Cases 137 (P&H) Criminal Procedure Code, 1973, S.145 Before a preliminary order for initiation of proceedings u/s 145 Cr.P.C. Magistrate is under legal obligation to draw a preliminary order which should contain (a) satisfaction as to the existence of a dispute which is likely to cause breach of peace (b) ground of his being so satisfied (c) correct description of property (e) parties concerning such dispute (e) directing parties to put in appearance and put their case by filing written statement and to adduce evidence in support of their claim. (Gopi Chand Vs Mohd.Hanief) 2003(3) Criminal Court Cases 306 (J&K) Criminal Procedure Code, 1973, S.145 Civil Court in seisin of dispute Passed interim order Held, proceedings u/s 145 Cr.P.C. not maintainable. (Kartika Sahoo Vs Krushna Chandra Sahoo) 2003(2) Criminal Court Cases 70 (Orissa) Criminal Procedure Code, 1973, S.145 Civil Court when seized of the matter and had granted adinterim injunction in favour of one party restraining the other from interfering in his peaceful possession then proceedings u/s 145 Cr.P.C. cannot be initiated. (Madan Lal Vs State of Punjab) 2003(1) Criminal Court Cases 86 (P&H) Criminal Procedure Code, 1973, S.145 Co-owners Parties co-owners of property in dispute Provision of S.145 Cr.P.C. cannot be invoked. (Nilima Barman Vs Ratima Barman) 2003(1) Criminal Court Cases 518 (Gauhati) Criminal Procedure Code, 1973, S.145 Co-sharers Proceedings u/s 145 Cr.P.C. are not maintainable. (Madan Lal Vs State of Punjab) 2003(1) Criminal Court Cases 86 (P&H) Criminal Procedure Code, 1973, S.145 Dispute concerning property Dispute already taken cognizance by a civil court Proceedings u/s 145 Cr.P.C. ought not to be initiated. (S.Je. Ramesh Babhu Vs The Executive Magistrate cum Revenue Divisional Officer & Anr.) 2005(2) Criminal Court Cases 208 (Madras) Criminal Procedure Code, 1973, S.145 Dispute over possession of shop Sessions Judge directed the parties to seek order of Civil Court In pursuance of the said order Magistrate directed receiver to hand over possession to one M Held, Magistrate acted contrary to the directions of Additional Sessions Judge as he ought to have directed parties to get necessary orders from the civil Court Impugned order set aside. (Bishan Narain Bhargava Vs Madan Lal Gulati) 2003(1) Criminal Court Cases 420 (P&H) Criminal Procedure Code, 1973, S.145 Dropping of proceedings u/s 145 Cr.P.C. Can be in three circumstances viz. (1) if the apprehension of breach of peace is recorded to have ceased to exist relating to the factum of possession of the disputed property and the Magistrate is absolutely satisfied about that from the materials placed before him; (2) if the decision relating to factum of possession has been determined by interlocutory or final order or decree by a Civil Court or any other Court of competent jurisdiction so as to avoid a conflict and dispute on the issue of possession; and (3) when one of the parties to the proceeding dies and there is no legal heir to be substituted or to contest the claim of the adverse party. (Sumani Kharsel Vs Dayamati Kharsel) 2002(3) Criminal Court Cases 540 (Orissa) Criminal Procedure Code, 1973, S.145 Finding of Magistrate as to possession of a party Such a finding can always be challenged before a Civil Court Civil Court is not bound by a prima facie finding recorded by Magistrate u/s 145 Cr.P.C. (Anup Kumar Sanyal Vs Gakul Bey) 2003(1) Criminal Court Cases 459 (Gauhati) Criminal Procedure Code, 1973, S.145 Forcible dispossession One there is forcible dispossession there is apprehension of breach of peace and it cannot be assumed otherwise simply on the basis of report

made by police officials Magistrate directed to proceed u/s 145 Cr.P.C. (Ram Lubhaya Vs Sat Pal Kataria) 2003(1) Criminal Court Cases 368 (P&H) Criminal Procedure Code, 1973, S.145 If a person has been dispossessed earlier than two months preceding the report to the SDM the remedy lies in civil suit and not in proceedings u/s 145 of the Code. (Dalbir Singh Vs State (NCT of Delhi)) 2002(1) Criminal Court Cases 444 (Delhi) Criminal Procedure Code, 1973, S.145 Possession Determination Revenue entries Under challenge Magistrate not to go only by the revenue record but by the other material on record in regard to actual and physical possession of the land. (Dalbir Singh Vs State (NCT of Delhi)) 2002(1) Criminal Court Cases 444 (Delhi) Criminal Procedure Code, 1973, S.145 Possession Dispute as to Litigation pending in Civil Court Proceedings u/s 145 Cr.P.C. cannot be initiated Question as to who is in possession of the plot in dispute will also be decided in accordance with the decision of Civil Court. (Tilak Raj Gupta Vs Daljit Singh) 2003(1) Criminal Court Cases 51 (P&H) Criminal Procedure Code, 1973, S.145 Preliminary order u/s 145 Cr.P.C. Injunction order passed by civil court against respondents 2 and 3 in favour of wife of first petitioner Order of injunction passed earlier than the order of the Executive Magistrate Proceedings quashed qua flat regarding which injunction order passed by civil Court. (Balmukund Gupta & Anr. Vs State of A.P.) 2003(2) Criminal Court Cases 521 (A.P.) Criminal Procedure Code, 1973, S.145 Proceedings can be initiated under the provision only when there is apprehension of breach of peace on a dispute of land or water or the boundary thereof Dispute without apprehension of breach of peace does not give jurisdiction to the Magistrate to initiate proceedings under Section 145, Cr.P.C. to adjudicate the claim of possession. (Kartika Sahoo Vs Krushna Chandra Sahoo) 2003(2) Criminal Court Cases 70 (Orissa) Criminal Procedure Code, 1973, S.145 Proceedings u/s 145 Court is mainly concerned with possession of the property in dispute on the date of the preliminary order and dispossession, if any, within two months prior to that date Court is not required to decide either title to the property or right of possession of the same. (Ranbir Singh Vs Dalbir Singh) 2002(2) Criminal Court Cases 187 (S.C.) Criminal Procedure Code, 1973, S.145 Proceedings u/s 145 Cr.P.C. Not competent when either the matter of title and possession has been earlier adjudicated upon by a competent Civil Court or is pending adjudication. (Kailash Nath Vs State of Uttar Pradesh & Ors.) 2004(2) Criminal Court Cases 579 (Allahabad) Criminal Procedure Code, 1973, S.145 Status quo order by civil court Proceedings u/s 145 Cr.P.C. not competent when there is an order of Civil Court. (Dalbir Singh Vs State (NCT of Delhi)) 2002(1) Criminal Court Cases 444 (Delhi) Criminal Procedure Code, 1973, S.145 Title suit concerning same property pending between parties in civil Court As such proceedings u/s 145 Cr.P.C. cannot be initiated by Magistrate. (Mani Chora Das Vs State of Jharkhand) 2002(2) Criminal Court Cases 533 (Jharkhand) Criminal Procedure Code, 1973, Ss.145, 146 & 397(2) Order of attachment Passed u/s 146(1) during pendency of proceedings u/s 145 Neither the respective rights of the parties are adjudicated nor any findings about any legal right is given by such an order Revision against Not maintainable. (Jai Prakash Vs Rajeshwar Prasad)2003(1) Criminal Court Cases 31 (Uttaranchal) Criminal Procedure Code, 1973, Ss.145, 146 Effect of the order of Magistrate passed u/s 145/146 Cr.P.C. (i) Competent Court Do not necessarily mean a civil court only A competent court is one which has the jurisdictional competence to determine the question of title or the rights of the parties with

regard to the entitlement as to possession over the property forming subject matter of proceedings before the Executive Magistrate; (ii) Party unsuccessful in an order u/s 145(1) to initiate proceedings in a competent court to establish its entitlement to possession over the disputed property and such a suit shall not be bad for not seeking relief of possession; (iii) At the stage of final adjudication of rights order of Magistrate is only one out of several pieces of evidence; (iv) Interim injunction inconsistent with the one made by the Executive Magistrate can be passed Order of Court final or interlocutory, would have the effect of declaring one of the parties entitled to possession and evicting therefrom the party successful before the Executive Magistrate within the meaning of sub-section (6) of S.145 Cr.P.C. (Shanti Kumar Panda Vs Shakuntala Devi) 2005(1) Civil Court Cases 344 (S.C.) Criminal Procedure Code, 1973, Ss.145, 146 Civil Court in a suit passed interim order restraining defendant not to dispossess the petitioners from land till disposal of suit Held, during pendency of civil proceedings, SDM has no jurisdiction to initiate proceedings u/s 145 and 146 Cr.P.C. Order of attachment by SDM is abuse of the process of Court and liable to be quashed. (Balraj Singh Vs Sewa Singh) 2002(3) Criminal Court Cases 175 (P&H) Criminal Procedure Code, 1973, Ss.145, 146 Magistrate can intervene u/s 145 and 146 Cr.P.C. if there is imminent breach of peace In instant case proceedings u/s 145 Cr.P.C. initiated in 1997 and order of attachment of land passed u/s 146 after 3 years Order set aside For 3 years there was no breach of peace. (Dalbir Singh Vs State (NCT of Delhi)) 2002(1) Criminal Court Cases 444 (Delhi) Criminal Procedure Code, 1973, Ss.145, 482 Initiating proceedings u/s 145 Order is revisable Petition u/s 482 Cr.P.C. is not maintainable. (Jaswant Singh Vs State of Haryana) 2002(3) Criminal Court Cases 604 (P&H) Criminal Procedure Code, 1973, Ss.145 & 146 Civil suit already pending Proceedings u/ss 145 and 146 Cr.P.C. cannot be initiated. (Ippan & two Ors. Vs State of U.P. & Anr.) 2004(1) Criminal Court Cases 49 (Allahabad) Criminal Procedure Code, 1973, Ss.145 & 146 Civil suit for permanent injunction filed by both the parties Order of Magistrate u/ss 145 & 146 Cr.P.C. quashed Parties to approach civil Court for interim order. (Ranbir Singh Vs Dalbir Singh) 2002(2) Criminal Court Cases 187 (S.C.) Criminal Procedure Code, 1973, S.146 Attachment Order of Dispute between parties resolved by Arbitration Award never challenged Rights of parties having been determined there is no authority in Magistrate to pass order of attachment more so when report of SHO was only a slip shod finding given with a closed mind Proper course is to go in for execution of award Order quashed. (Brij Ratan Mohta Vs The State of Rajasthan) 2003(2) Criminal Court Cases 498 (Raj.) Criminal Procedure Code, 1973, S.146 No emergency to apprehend breach of peace Order of attachment set aside. (Ram Swaroop Singh Vs State) 2002(3) Criminal Court Cases 409 (Rajasthan) Criminal Procedure Code, 1973, S.146(1) Attachment of property Every person claiming any right to possession in respect of such property, whether he was a party to the said proceeding or not is bound by the said order No person can occupy or interfere with the said property until the order of attachment is modified by Executive Magistrate or until rights of parties are determined by a competent Court of civil jurisdiction The officer to whom possession of the property is entrusted in terms of warrant of attachment is duty bound to protect the same. (K.Pavan Vs Special Executive Magistrate) 2002(1) Criminal Court Cases 509 (A.P.) Criminal Procedure Code, 1973, S.147 Right of user Means any dispute relating to a recurring right in the use of the land or water whether the right is claimed by a person in possession or not and such right is not limited to right of easement proper. (Siba Prasad Moharana Vs Dhadi Nayak) 2003(1) Criminal Court Cases 52 (Orissa)

Criminal Procedure Code, 1973, S.147 Mandatory requirement for an order under this provision is that Magistrate must be satisfied from Police report or upon other information that a dispute exists with regard to the alleged right of user of a land and that dispute is likely to cause a breach of peace Grounds are required to be recorded in writing of his being so satisfied and then ask parties to put their respective claims in form of a written statement Magistrate can make prohibitory order or removal of any obstruction when he is satisfied that such an alleged right exists This is only an opinion of Magistrate and there can be no determination of rights which is the domain of a Civil Court. (Siba Prasad Moharana Vs Dhadi Nayak) 2003(1) Criminal Court Cases 52 (Orissa) Criminal Procedure Code, 1973, S.147 Scope Provision of S.147 has the same object as that of S.145 Cr.P.C. Power conferred on Magistrate is intended to preserve public peace and not to determine the right of parties like a Civil Court. (Siba Prasad Moharana Vs Dhadi Nayak) 2003(1) Criminal Court Cases 52 (Orissa)