L. Mohapatra, J.
1. This Application under Section 482 Cr.P.C. is directed against the order of the Executive Magistrate, Cuttack passed under Section 133 of the Code of Criminal Procedure directing the petitioner to shift an industry from the site where it is located at present and the order passed by the learned Sessions Judge, Cuttack in Criminal Revision No. 9 of 2002 confirming the said order.
2. The opposite parties are resident of Manavila under Malgodown P.S. and they filed an application under Section 133 of the Code of Criminal Procedure for a direction to the present petitioner to remove the nuisance caused due to running of a factory by the petitioner. The case of the opposite parties is that Manavila is a residential area constituting several residential houses. One Bishnu Jain who owned one of the houses has given on rent the said house to the petitioner for using the same as an industry for manufacturing steel furniture and also for fabrication of iron and steel frames. It is alleged in the petition that due to running of the manufacturing unit within the residential area, the sound created for manufacturing the items as mentioned above between 8.00 A.M. to 8.00 P.M. is unbearable and causes nuisance. It is also alleged that due to the sound created in course of manufacturing, the students are not able to read and local residents are not able to sleep peacefully. The local residents are not in a position to raise objection because of high handed action of the petitioner and his men and the F.I.R. lodged before the Malgodown P.S. has brought no result, forcing them to approach the Court for the above purpose. The petitioner objected to the prayer on the ground the said industry has been set up with permission from the District Industries Centre and the sound alleged to be created in course of manufacturing is within the specified norms as prescribed under the Noise Pollution Rules, 2000 and, therefore, there is no necessity of shifting the industry to any other place.
3. The Executive Magistrate in course of the proceeding called for a report from the local police station and on the basis of the report submitted by the local police as well as the oral evidence adduced before him allowed the application and by order dated 15.12.2001 directed the petitioner to shift the industrial unit to some other site. Challenging the said order, the petitioner preferred Criminal Revision No. 9 of 2002 before the learned Sessions Judge, Cuttack and by judgment and order dated 9.5.2002 the learned Sessions Judge dismissed the revision confirming the order passed by the Executive Magistrate. Challenging the aforesaid orders, the petitioner has approached this Court in this application under Section 482 Cr.P.C.
4. The learned counsel appearing for the petitioner submitted that in an application filed under Section 133 Cr.P.C. it is obligatory on the part of the learned Magistrate to make a local inspection. According to the learned counsel, no local inspection has been made by the learned Magistrate to find out the truth or otherwise of the allegations made by the opposite parties. He further submitted that the industrial unit was established under the licence granted by the District Industries Centre and the sound alleged to be created in course of manufacturing is within the norms as prescribed under the rules and, there was no necessity of passing an order for shifting of the industry. The learned counsel appearing for the opposite parties, on the other hand, submitted that running of an industry engaged in manufacture of steel almirahs and other furniture as well as steel frames in the residential area can only cause public nuisance by creating sound and the order of the learned Magistrate is based not only on the report submitted by the local police but also evidence adduced on behalf of the opposite parties before him. It was further submitted that both the Courts below having found that running of the industry in the residential area is causing public nuisance, there is hardly any scope in an application under Section 482 Cr.P.C. to interfere with the concurrent findings of fact.
5. There is no dispute that the industrial unit is run in the name of the wife of the petitioner and is located within the residential area. There is also no dispute that the said industrial unit is engaged in manufacturing steel furniture as well as frames. For the purpose of manufacturing the items as stated above, there cannot be any dispute that hammering and cutting of iron sheets as well as angles etc. will be required and in the process sound will be created. Now the question is as to whether creation of such sound in course of manufacturing has caused public nuisance or not. From the impugned orders, it is clear that a report was called for by the learned Executive Magistrate from the local police and a report was submitted to the effect that the industrial unit run by the petitioner is creating such sound which amounts to public nuisance. The witnesses examined on behalf of the opposite parties have also specifically stated that the sound caused due to such manufacturing process affected the local residents in the manner stated in their depositions. From the report of the local police, it appears that the factory is running from the year 1998 having a long room with asbestos roof. The said factory is dealing with manufacturing of steel almirahs and also fabricating of iron and steel frames. The factory is adjacent to the residential house of one of the opposite parties namely; Narendra Nath Mohanty and the house of other opposite parties are situated in close proximity. The working hour of the factory is from 8 A.M. to 8 P.M. everyday and in course of the activities conducted by the industrial unit unbearable sound is created for cutting and bending of iron and steel as well as hammering of the same. In view of such sound, the residents of the surrounding area are facing lot of trouble. It is further reported by the local police that though the industrial unit was granted permission by the D.I.C. to run the factory at Pilgrim Road, Cuttack, it has been subsequently shifted to Manvilla premises, Colleges Square, Cuttack. The petitioner for shifting the industrial unit from Pilgrim Road to Manvilla premises could produce no permission. The evidence adduced before the Executive Magistrate also supports the report submitted by the local police. In view of such nature of evidence placed before the learned Executive Magistrate, I am of the view that the Executive Magistrate was justified in holding that running of the industrial unit in the Manvilla premises is causing unbearable sound affecting day to day life of the local residents which amounts to public nuisance.
6. Section 133 of the Code of Criminal Procedure prescribes that 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, considers that any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel which is or may be lawfully used by the public, such Magistrate may make a conditional order requiring the persons causing such obstruction or nuisance and if he objects so to do, after hearing pass an order making the conditional order absolute. The learned counsel for the petitioner referring to the said section submitted that a local inspection is required to be made by the learned Executive Magistrate but no such inquiry/inspection was made. Reliance has been placed by the learned counsel for the petitioner on a decision of the Allahabad High Court in the case of Jagdamba Prasad Tewari and Anr. v. State of U.P. and Ors. reported in 1991 CRI, L.J. 1883. In the said decision the Allahabad High Court observed that the Magistrate for arriving at his satisfaction would apply its mind on the evidence so available before him and the words 'the Magistrate has to take evidence as in the summons case' make it clear that the evidence is to be led by the prosecution and the burden to lead evidence is on the prosecution irrespective of the fact whether the objector leads or does not lead any evidence before the ex parte order passed under Sub-section (1) of Section 133 Cr.P.C. is made absolute. The complainant has to produce before the Court legal evidence to justify a finding that what is complained of amounts to obstruction or nuisance. Reliance was placed on a decision of this Court in the case of Shyam Khatua and Ors. v. Biswanath Panda reported in 2002 (I) O.L.R. 126. This Court in the aforesaid case held that order under Section 133, Cr.P.C. should not be made solely relying on the report submitted by officer-in-charge of police station and documents placed before the Court. An inquiry is required to be made. In the present case there cannot be any dispute about such proposition of law. But so far as the present case is concerned, it is clear that not only the learned Executive Magistrate called for the report of the local police but also the complainant was allowed to lead evidence before the Court in support of his allegations. Therefore, it cannot be said that the order passed by the learned Executive Magistrate is solely based on the report of the local police. It is clear from the order passed by the learned Executive Magistrate that he not only relied on the report submitted by the local police but also evidence led before him in course of proceeding during inquiry and applying his mind and giving reasons passed an order for shifting of the industrial unit. The learned Sessions Judge has also considered each and every aspect of the submissions made by the learned counsel and confirmed the order passed by the learned Executive Magistrate. I do not find any scope at all to interfere under Section 482 Cr.P.C.
7. Accordingly, I do not find any merit in the application and the same stands dismissed.