G.D.Srivastava - (1.) THIS application under Sec. 482 CrPC has been moved by Amba Shankar Upadhyaya for quashing the procedings under Section 133 CrPC pending against him in the Court of City Magistrate, Varanasi.
(2.) THE brief facts of the case are that the petitioner has a house No. C. K. 30/10-A in Mohalla Nepali Khapra (Gyanvapi) in the town of Varanasi. It was alleged that the applicant had opened a new door in this house towards the road. A proceeding under Section 133 CrPC was started in respect of this door but those proceedings were dropped on 30-1-1975. Again on 21-5-1975 a fresh proceeding under the same section was started in respect of the same door. THE petitioner has assailed these proceedings on two grounds; firstly it is said that the proceedings had already been dropped on 30-1-1975, fresh proceedings could not be started. Secondly it is said that opening of a door did not amount to a public nuisance or obstruction in the public way and, therefore, proceedings under Section 133 CrPC were incompetent. On behalf of the State a counter affidavit has been filed alleging that the door is a new one and the opening of such a door is likely to create some trouble in that locality. I have heard the learned counsel for the parties and have looked into the provisions of Section 133 CrPC. This section comes into operation only when there is an unlawful obstruction in any public way, river or channal etc. or there is a nuisance in public way, river, channel etc. The question, therefore, is whether the opening of a door in a residential house will amount to obstruction or nuisance. It is obvious that opening of a door can in no case be an obstruction simply because the public way on which it has been opened exists as it used to exist before the opening of this door. Now the other question is whether the opening of a door is a nuisance or not. I have not been able to find out any material on record from which it can be inferred that the opening of this door has resulted in any nuisance. The mere fact that the opening of a door will lead to some communal trouble or will create some law and order problem will not make it a nuisance. If the opening of this door is likely to create any law and order problem, it is for the executive authorities to deal with that problem and it is not open to those authorities to get the door closed by resorting to proceedings under Section 133 CrPC. If the petitioner has opened the door against any local law, he can be prosecuted for it. The law provides for removal of the nuisance and not the source of the nuisance. Above all, it is not proved from the record that the opening of this door has resulted in any nuisance. Having thus considered the facts and circumstances of the case, I am of the opinion that the opening of this door does not fall within the four corners of Section 133 CrPC and the entire proceding is, therefore, misconceived. In the result, the petition is allowed. The proceeding under Section 133 CrPC pending in the Court of the City Magistrate, Varanasi against the applicant is hereby quashed.;