Case Note & Summary
The petitioners operated stone crushing plants in Uran, Raigad, with valid consents from MPCB and mining licenses. The Sub-Divisional Magistrate, Panvel, issued show cause notices on 27 May 2024 alleging that the plants endangered the structural stability of the Mumbai Trans Harbour Sea Link (Atal Setu) and caused environmental destruction. After receiving replies, the Magistrate passed orders on 28 June 2024 under Section 133 CrPC directing closure of the plants until a committee of experts submitted its report. The petitioners challenged the orders, arguing that no conditional order was passed as required by Section 133 CrPC, and that there was no finding of imminent danger or present injury. The court analyzed the statutory scheme under Sections 133-139 CrPC, noting that the Magistrate must first pass a conditional order, then follow a detailed procedure before making it absolute. The court found that the impugned orders were final in nature, not interim, and that the Magistrate had bypassed the mandatory procedure. The court also held that there was no material to show that the crushing activities caused any damage or imminent danger to the bridge, especially since the petitioners did not use blasting. The court set aside the closure orders, directing the Magistrate to proceed afresh in accordance with law, including passing a conditional order if warranted.
Headnote
A) Criminal Procedure - Section 133 CrPC - Conditional Order - Sine Qua Non - The Magistrate must first pass a conditional order under Section 133(1) CrPC before proceeding to a final order; failure to do so renders the proceedings illegal. The court held that drawing a preliminary order is a sine qua non for initiation of proceedings under Section 133 CrPC, and in its absence, the closure order is liable to be set aside. (Paras 7, 10-12)
B) Criminal Procedure - Section 133 CrPC - Public Nuisance - Imminent Danger - The power under Section 133 CrPC cannot be exercised without a finding of fact that the trade or activity is injurious in presenti to the health or physical comfort of the community or causes imminent danger to property. The court held that in the absence of any material indicating present injury or imminent danger, the closure order was unsustainable. (Paras 8, 13-14)
C) Criminal Procedure - Section 133 CrPC - Procedure - Show Cause Notice - Issuing a show cause notice and then passing a final order without following the procedure under Sections 135-139 CrPC is contrary to the statutory framework. The court held that the Magistrate must follow the detailed procedure before making the conditional order absolute. (Paras 7, 10-12)
Issue of Consideration
Whether the Sub-Divisional Magistrate could pass a final order under Section 133 CrPC directing closure of stone crushing plants without first passing a conditional order and without recording a finding of fact that the activities amounted to public nuisance or imminent danger.
Final Decision
The court allowed the writ petitions and set aside the impugned orders dated 28 June 2024. The court directed the Sub-Divisional Magistrate to proceed afresh in accordance with law, including passing a conditional order under Section 133 CrPC if warranted, and following the procedure under Sections 135-139 CrPC before making any final order.
Law Points
- Section 133 CrPC requires a conditional order before final order
- sine qua non of preliminary order
- necessity of finding of imminent danger or present injury
- procedure under Sections 135-139 CrPC must be followed
Case Details
2024 LawText (BOM) (8) 123
Writ Petition No.3140 of 2024 with Writ Petition Nos.3141, 3142, 3143 of 2024
Mr. A.Y. Sakhare (Senior Advocate) with Mr. Sanket Thakur for Petitioners; Mr. Hiten S. Venegaonkar (Public Prosecutor) with various APPs for State; Mr. Jitendra Jagtap with Ms Eshikaa Sood & Ms Maria Shaikh for MPCB; Mr. Sameer Palsuledessai for MSEDC
Shridhar Kashinath Bhagat, M/s. Bhavesh Stone Crushing, M/s. Bluestar Construction, Narayan Gajanan Thakur
Sub-Divisional Officer at Panvel and Ors.
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Nature of Litigation
Writ petitions challenging orders under Section 133 CrPC directing closure of stone crushing plants.
Remedy Sought
Petitioners sought quashing of the closure orders dated 28 June 2024 passed by the Sub-Divisional Magistrate, Panvel.
Filing Reason
Petitioners were aggrieved by the closure orders which they claimed were passed without following the procedure under Section 133 CrPC and without any finding of imminent danger or public nuisance.
Previous Decisions
The Sub-Divisional Magistrate had earlier issued show cause notices on 27 May 2024 and after receiving replies, passed the impugned closure orders on 28 June 2024.
Issues
Whether the Sub-Divisional Magistrate could pass a final order under Section 133 CrPC without first passing a conditional order?
Whether the closure order was sustainable in the absence of a finding of fact that the activities amounted to public nuisance or imminent danger?
Submissions/Arguments
Petitioners argued that the Magistrate failed to pass a conditional order as required under Section 133 CrPC and that the procedure under Sections 135-139 was not followed. They also contended that there was no material showing any damage or imminent danger to the bridge, and that they did not use blasting.
Respondents argued that the orders were interim in nature, pending a report from a committee of experts, and that the closure was a pro tem measure to protect the vital infrastructure of the Mumbai Trans Harbour Sea Link.
Ratio Decidendi
The power under Section 133 CrPC must be exercised by first passing a conditional order, which is a sine qua non for initiation of proceedings. The Magistrate cannot bypass the procedure under Sections 135-139 CrPC and pass a final order directly. Additionally, an order under Section 133 CrPC requires a finding of fact that the trade or activity is injurious in presenti to the health or physical comfort of the community or causes imminent danger to property.
Judgment Excerpts
Under Section 133, the Magistrate is required to first pass a conditional order, whereafter the person against whom said order is passed, can either accept the order or question the same.
Drawing of a preliminary order is a sine qua non for initiation of proceedings under Section 133 of the Code and that in absence of such a preliminary order, the closure order passed by the Sub-Divisional Magistrate is illegal and liable to be set aside.
The power under Section 133 of the Code cannot be exercised without a finding of fact that the activities carried out by Petitioners actually amount to public nuisance.
The conduct of trade must be injurious in presenti to the health or physical comfort of the community and that an order under Section 133 or 138 of the Code cannot be exercised in absence of any findings of fact that the activities have caused any injury ‘at present’.
Procedural History
The Sub-Divisional Magistrate issued show cause notices on 27 May 2024 to the petitioners. After receiving written submissions, the Magistrate passed orders on 28 June 2024 under Section 133 CrPC directing closure of the stone crushing plants. The petitioners filed writ petitions before the Bombay High Court challenging the orders. The High Court heard the matter and delivered judgment on 12 August 2024, setting aside the closure orders and directing the Magistrate to proceed afresh.
Acts & Sections
- Code of Criminal Procedure, 1973: 133, 135, 137, 138, 139, 140
- Maharashtra Minor Mineral Extraction (Development and Regulation) Rules, 2013:
