Div Com not empowered to act as magistrate under 144 CrPC: HC

Quashes order declaring plastic scrap unit in Kulgam public nuisance, cause of pollution
Div Com not empowered to act as magistrate under 144 CrPC: HC
File photo of J&K High CourtMubashir Khan/ GK

Srinagar, Dec 24: The High Court Friday held that neither Divisional Commissioner Kashmir nor Deputy Director Economics and Statistics (E&S) in his office were a District Magistrate or any other Executive Magistrate empowered by the government to exercise the powers under Section 144 of Criminal Procedure Code (CrPC).

“I am of the view that neither the Divisional Commissioner, Kashmir, nor the Deputy Director (E&S), working in his office, is a District Magistrate, a Sub Divisional Magistrate or any other Executive Magistrate, specially empowered by the government to exercise the powers under Section 144 CrPC,” the bench of Justice Sanjeev Kumar said.

The court said this while quashing an order by Deputy Director (E&S) with Divisional Commissioner Kashmir that had declared a unit dealing with plastic scrap at Kwaki Bazar Qaimoh in Kulgam district a public nuisance and cause of pollution.

The court pointed out that indisputably a District Magistrate or Sub Divisional Magistrate or any other Executive Magistrate specially empowered by the government may exercise power to issue orders in urgent cases apprehending nuisance or danger to public life by acting under section 144 of CrPC.

Quashing the order of Deputy Director E&S in Divisional Commissioner Kashmir’s office, the court said: “Any order made under Section 144 CrPC is to remain in force only for two months and if it is to be extended beyond that period, the competence lies only with the government, that too, when it deems it necessary for preventing danger to human life, health or safety or preventing a fight or any affray and this can be done by the government only by issuance of a notification.”

Notwithstanding quashing of the order, the court said, it would be competent for the District Magistrate, Sub Divisional Magistrate, or any other Executive Magistrate, specially empowered in this behalf by the government to proceed under Section 144 CrPC, provided the activity the petitioner was engaged in (collection, storing and segregation of plastic waste) on his proprietary land, amounts to public nuisance or otherwise falls within the ambit of Section 144 CrPC.

The court said that if the government proceeds against the petitioner under Section 144 CrPC in that eventuality not only he should be given the opportunity of being heard but the entire procedure, laid down in the section should be strictly adhered to.

“It is left to the State Pollution Control Board or any other competent authority to look into the grievance of the private respondents and take a decision as to whether the activity, the petitioner is engaged in, falls within the ambit of the Prevention of Water Pollution Act 1974, Air Pollution Act 1981 or the Rules framed thereunder or any other applicable provision of Anti Pollution Law and, therefore, requires permission to establish or operate a unit,” the court said.

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