SUHELKHAN KHUDYARKHAN & ANR. versus STATE OF MAHARASHTRA & ORS.

Citation: [2009] 5 S.C.R. 1142 · Decided: 15-04-2009 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Disposed off

Judgment (excerpt)

(2009] 5 S.C.R. 1142 
A 
SUHELKHAN KHUDYARKHAN & ANR. 
v. 
STATE OF MAHARASHTRA & ORS. 
(Criminal Appeal No.1039 of 2005) 
B 
APRIL 15, 2009 
[DR. ARIJIT PASAYAT, LOKESHWAR SINGH PANTA 
AND P. SATHASIVAM, JJ.] 
Code of Criminal Procedure, 1973: 
c 
s. 133 - Scope of - Discussed - On facts, order of High 
Court directing removal of the encroachment does not suffer 
from infirmity so as to call for interference. 
D 
Appellants were tenants on the suit premises for 15-
20 years where they erected a tin shed and were running 
a religious bookshop. Municipal Council tried to remove 
the shop. Appellants filed civil suit. SOM issued a 
conditional order to remove the shop on the basis of 
complaint of respondent no.2. Appellants appeared 
E before SOM and requested for dismissal of application of 
respondent no.2. The SOM by order directed appellants 
to remove the shop. Appellants filed revision which was 
dismissed. They filed writ petition before High Court 
which also directed appellants to remove encroachment. 
F Hence the appeal. 
Disposing of the appeal, the Court 
HELD: 1. A proceeding under Section 133 CrPC is of 
G 
a summary nature. It appears as a part of Chapter X of 
the Code which relates to maintenance of public order 
.-
and tranquility. The Chapter has been classified into four 
... 
categories. Sections 129 to 132 come under the category 
of "unlawful assemblies". Sections 133 to 143 come 
H 
1142 
> 
SUHELKHAN KHUDYARKHAN & ANR. v. STATE OF 1143 
MAHARASHTRA & ORS. 
under the category of "public nuisance". Section 144 A 
comes under the category of "urgent cases of nuisance 
or apprehended danger" and the last category covers 
Sections 145 to 149 relating to "disputes as to immovable 
property". Nuisances are of two kinds, i.e. (i) Public; and 
.; 
(ii) Private. 'Public nuisance' or 'common nuisance' as 
B 
defined in Section 268 IPC is an offence against the 
public either by doing a thing which tends to the 
annoyance of the whole community in general or by 
neglecting to do anything which the common good 
requires. It is an act or omission which causes any c 
common injury, danger or annoyance to the public or to 
the people in general who dwell or occupy property In the 
vicinity. 'Private nuisance' on the other hand, affects 
some individuals as distinguished from the public at 
large. The remedies are of two kinds - civil and criminal. 
D 
The remedies under the civil law are of two kinds. One is 
under Section 91 CPC. Under it a suit lies and the 
plaintiffs need not prove that they have sustained any 
special damage. The second remedy is a suit by a private 
individual for a special damage suffered by him. There are 
E 
three remedies under the criminal law. The first relates to 
-
the prosecution under Chapter XIV of IPC. The second 
provides for summary proceedings under Sections 133 
to 144 of the Code, and the third relates to remedies under 
special or local laws. Sub-section (2) of Section 133 
F 
.. 
postulates that no order duly made by a Magistrate under 
this Section shall be called in question in any civil Court. 
The provisions of Chapter X of the Code should be so 
worked as not to become themselves a nuisance to the 
community at large. Although every person is bound to 
so use his property that it may not work legal damage or G 
harm to his neighbour, yet on the other hand, no one has 
~· 
a right to interfere with the free and full enjoyment by such 
,, 
person of his property, except on clear and absolute proof 
that such use of it by him is producing such legal damage 
or harm. Therefore, a lawful and necessary trade ought H 
1144 
SUPREME COURT REPORTS [2009) 5 S.C.R. 
A not to be interfered with unless it is proved to be injurious 
to the health or physical comfort of the community. 
-
Proceedings under Section 133 are not intended to settle 
private disputes between different members of the public. 
They are in fact intended to protect the public as a whole 
B against inconvenience. A comparison between the 
provisions of Section 133 and 144 of the Code shows that 
while the former is more specific the latter is more 
general. Therefore, nuisance specially provided in the 
former section is taken out of the general provisions of 
c the latter section. The proceedings under Section 133 are 
more in the nature of civil proceedings than of criminal 
nature. Section 133(1)(b) relates to trade or occupation 
which is injurious to health or physical comfort. It itself 
deals with 

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