Delhi District Court
Sh. Ajay Singh vs State on 12 January, 2009
-: 1 :-
IN THE COURT OF SHRI SANJEEV AGGARWAL :
ADDITIONAL SESSIONS JUDGE : ASJ-V, OUTER : ROHINI
DISTRICT COURTS : DELHI
Crl. Rev. No. 15/08
P.S. Kanjhawala
U/s 397 Cr. P.C.
1. Sh. Ajay Singh
2. Sh. Vijay Singh
3. Shri Ganesh
All sons of Shri Gayani Ram
All resident of Village Karala, Delhi. -------- Petitioners
Vs.
1. State
2. Shri Naresh
S/o Shri Satpal Mathur
R/o Village & P.O. Karala, Delhi. ------- Respondent
Date of Institution: 20.8.2007
Date of transfer before this court: 03.12.2008
Date of Judgment: 12.01.2009
JUDGEMENT
Vide this judgement I shall dispose off the revision petition filed by the petitioners against the order dated 9.8.07 passed by Ld. SDM, Saraswati Vihar u/s 133 Cr. P.C. Brief facts which are relevant for deciding the present controversy are, that the respondent No. 2 had filed a complaint regarding alleged septic tank of the petitioners in the public street. -: 2 :- Consequently on the said complaint, a kalandra u/s 133 Cr. P.C. was drawn by the police dated 22.8.04 and the SDM after receipt of said kalandra issued notice to the petitioners u/s 133 Cr. P.C. and in response to the said notice, the petitioners submitted their joint reply dated 18.1.2006.
In the said reply, it has categorically stated by them, that there existed no public right upon the portion of the land alleged in the complaint and it was also submitted that the complaint was malacious as the complainant was involved in a case u/s 308/323/34 IPC in FIR No. 266/04 on the complaint of the petitioners, and as a result the said complaint u/s 133 Cr. P.C. had been filed to take revenge.
It is further submitted that, the perusal of the order sheets before the SDM shows that the last effective hearing there took place on 20.2.07 and thereafter the matter was adjourned for 9.4.07. But before the next date of hearing, the then SDM was transferred and no proceeding on after 9.4.07 and it is stated that when the petitioners visited the office of SDM on 9.4.07, it was stated to them that notice will be given to the parties, after new officer comes and joins the duties, but despite awaiting for the -: 3 :- said notice, no notice was received by the petitioners from the said office and instead of issuing notice, the Presiding Officer had passed an order dated 2.8.07, which has been assailed on the following main grounds :
1. That no proceeding took place in the court after 20.2.07 and the order dated 2.8.07 have been passed without issuing notice to the petitioners.
2. No conditional order has been passed as per requirement of section 133 Cr. P.C, therefore, the impugned order cannot be sustained in the absence of conditional order.
3. That perusal of the impugned order shows that the reply submitted by the petitioners has not been considered.
4. That the impugned order shows, it is a reflection of the report of Halka Patwari and the same cannot be treated as evidence against the petitioners, unless they have been afforded an opportunity to cross examine the said Halka Patwari.
5. That there is no encroachment over the public land. The land under septic tank belongs to the petitioners. -: 4 :-
6. That the SDM cannot proceed with the complaint u/s 133 Cr. P.C. when there is denial of existence of public rights and the SDM's did not inquire into this fact, as per the requirement of section 137 Cr. P.C. nor the provisions of section 138 Cr. P.C. have been complied with and the SDM cannot pass an order u/s 138 Cr. P.C. in the absence of conditional order and without inquiring into the reply, therefore it is disputed that there is any application of mind on the part of SDM and his order deserves to be set aside.
Reply to the revision petition has been filed by respondent no. 2 in which it is stated that the present revision has no merits and is liable to be dismissed with costs and the petitioners had only filed the present revision petition with a view to harass the respondent and the order passed by SDM was based upon true facts, and was based on evidence and as per provisions of law and the petitioners have not come to the court with clean hands.
It is vehemently denied that the complaint filed by respondent No. 2 was malafide. It is also denied that complaint u/s 133 Cr. P.C was a counter blast to the FIR No. 266/04 u/s -: 5 :- 308/323/34 IPC P.S. Kanjhawala and it is stated that the present kalandra was registered by police on 22.8.04 and the said FIR is dated 19.10.04 which clearly shows the malafides of the petitioners.
It is further submitted that six effective hearings, took place before the Ld. SDM and petitioners themselves chose not to appear before the court of Ld. SDM and his counsel did not appear on the given date and the petitioners also failed to produce relevant documents before the SDM and it is denied that no conditional order have been passed, as per the requirements of section 133 Cr. P.C. and it is submitted that SDM has passed the order of demolition as per evidence available with him, and as per law.
It is further submitted that mere filing of reply is not sufficient to prove the contentions of the petitioners as the petitioners never produced any documentary evidence in their favour and as such the petitioners had failed to prove their contentions miserably, and it is further submitted that the petitioners are land grabbers and the order u/s 133 Cr. P.C. has been passed by Ld. SDM as per law and therefore the revision -: 6 :- petition deserves to be dismissed.
I have heard Ld. counsel for the petitioners and Ld. counsel for the respondent No. 2 and perused the record.
Counsel for the petitioners have relied upon following judgements:-
(i) 1999 Crl. L.J. 4228; (ii) 1990(1) Crl. L. J. 462; (iii) 1995 (1) Recent Criminal Reports 377; (iv) 1986(1) Recent Criminal Reports 444; and (v) 1993(1) Crimes 997.
On the other hand, counsel for respondent No. 2 has cited and relied upon the following judgements:
(i) 1993 Crl. L.J. 2072; (ii) 1996 Crl. L. J. 2789; (iii) 2003 Crl. L. J. 4666; (iv) 2005(4) RCR (Criminal) Recent Criminal Reports 183; and (v) 2004(3) RCR (Criminal) Recent Criminal Reports 463.
The preposition of law laid down in the afore judgements is not in dispute, however, each case has to be decided on its own peculiar facts and circumstances.
The procedure for removal of public nuisance has been laid down in section 133 - 138 of the Criminal Procedure Code. On the conjoint reading of the aforesaid section(s), it appears that a -: 7 :- Magistrate may issue a notice to show cause or a conditional order before passing conditional order on report of public officer or other information Magistrate may or may not take evidence; AIR 1931 A 257; Abdul Shakur; but it must be taken u/s 138 Cr. P.C. before making order absolute; (Srinath, 24 C 395; Abdul Shakur, Sup; Mahabir, A 1947 O 65; Etraj, 33 CWN 201; Abhoy, A 1928 C 96; Tirkha, 49A 475; Kalyan Mul, A 1936 P 577).
However, in the present case, the perusal of the order of SDM reveals that vide order dated 20.2.07, the Ld. SDM (S.V.) had passed an order that the perusal of the case file, revealed that no conditional order u/s 133 Cr. P.C. was passed by the then SDM directing the respondent to remove the alleged unlawful obstruction made by them on public path/road and the case was continuing for the last two years on the strength of notices and orders on the proceeding sheets and therefore vide said order the said SDM directed the Halka Patwari to submit a detailed report regarding the alleged encroachment on the public path / road adjacent to plot / khasra no. 1181-82/1194, 1183-1195 in the revenue estate of village Karala, Delhi and the Halka Patwari was directed to submit his report before 15.3.2007 and the case was -: 8 :- listed for 9.4.2007 for further proceedings.
However, a perusal of the case file reveals that there is no order sheet dated 9.4.2007 on the record and it seems that the case after 20.2.2007 had been taken up straightway on 2.8.08 on which date it had been ordered that conditional order u/s 133 Cr. P.C. has to be issued on the basis of the report of Halka Patwari dated 20.6.07 regarding Khasra No. 1181, 1185, 1194, 1195/10 and the matter be put up with conditional order. However, it appears that instead of passing of a conditional order as directed by Ld. SDM in his order dated 20.2.07, the Ld. SDM proceeded to pass a absolute order dated 9.8.2001, thereby directing the respondents (petitioners here) u/s 133 of Cr. P.C. to remove the structure built up in khasra no. 1182 coming in public way within seven days and it was further directed that the said structure was to be used as latrine, bathroom and septic tank. It is not clear how the Ld. SDM who passed the order dated 9.8.07 passed the said order in absolute terms without following the procedures laid down in section 138 Cr. P.C. as he at the most could have passed an conditional order requiring the petitioners to remove the said structure built up in khasra no. 1182 coming in public way or to -: 9 :- show cause why the conditional order passed should not be made absolute;
Whereas in the present case from the order dated 9.8.07, it appears that instead of passing any conditional order as was previously envisaged by the SDM vide order dated 20.2.07, the learned successor instead of passing an conditional order made the said order absolute, without resorting to provisions of 138 Cr. P.C. Further from the perusal of the case file it appears that there is no order dated 9.4.07 on the record. Therefore, it was incumbent upon the learned successor of the SDM who had passed the order dated 9.8.07 to have issued a show cause notice to the present petitioners, when he took up the matter on 2.8.07 especially when there is no whisper about the fate of proceedings which were taken up on 9.4.07 on record. Further, though the SDM may pass conditional order with or without taking any evidence, yet, the said conditional order should have been passed after considering the reply filed by one of the present petitioners namely Ajay Singh which is already on the record of the said file and from the perusal of the order dated 9.8.07, it nowhere appears that the said reply was taken into consideration -: 10 :- before passing the said order dated 9.8.07 which should have been done as per the principles of the natural justice.
In view of the above discussion, the order dated 9.8.07 is contrary to law, as vide the said order the conditional order which was sought to be passed vide order dated 20.2.2007 has been made absolute without following the provisions of section 138 of the Cr. P.C. and for the detailed reasons as discussed aforesaid. Consequently, present revision petition is allowed and the order dated 9.8.07 of the Ld. SDM is hereby set aside and the matter is remanded back to the SDM concerned, to pass a reasoned conditional order, as envisaged in the order dated 20.2.2007 and thereafter the concerned SDM, will proceed further, strictly as per provisions of section 137 to 138 of Cr. P.C. Parties are hereby directed to appear before the concerned SDM on 5.2.2009 at 2 pm for further proceedings. With these orders, the revision petition stands disposed off.
Announced in the open court Sanjeev Aggarwal on this 12th day of Jan., 2009 ASJ, Rohini, Delhi