Himachal Pradesh High Court
Pardhan Singh Jhouta vs State Of Himachal Pradesh And Others on 5 January, 2024
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MMO No. 793 of 2023 .
Reserved on: 04.12.2023 Date of Decision: 05.01.2024.
Pardhan Singh Jhouta ...Petitioner
of
Versus
State of Himachal Pradesh and others
rt ...Respondents
Coram
Hon'ble Mr. Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes.
For the Petitioner : Mr. P.P. Chauhan, Advocate, through video-conferencing and Mr. Rihan and Ms. Aditi Rana, Advocates, in person.
For the Respondents : Mr. Prashant Sen, Deputy Advocate General, for respondents No.1 to 6-State.
Mr. V.S. Chauhan, Senior Advocate with Mr. Vanshaj Azad, Advocate, for respondents No.7 and 8.
Mr. Parveen Chauhan, Advocate, for respondent No.9.
1Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 05/01/2024 20:35:10 :::CIS 2Rakesh Kainthla, Judge The present petition is directed to quash the order .
dated 25.7.2023, passed by the learned Sub Divisional Magistrate(SDM), Jubbal and the proceedings pending against the petitioner.
2. Briefly stated, the facts giving rise to the present of petition are that a report was made to the Deputy Director, Animal Husbandry with a copy to Pradhan, Gram Panchayat, rt Dhar stating that Pradhan Singh-respondent had obstructed the passage leading to the dispensary which was causing difficulty in approaching the dispensary. The respondent claimed that the land belonged to him; however, the land had been used as a passage by the public for 30-35 years. There is no alternative passage to the public. Secretary, Gram Panchayat wrote a letter to SDM, Jubbal stating that the passage was blocked, which was causing difficulty to the staff employed in the dispensary and the public. A request was made to take suitable action.
3. This letter was placed before the SDM with the noting made by the Reader. Learned SDM passed an order to seek a report from the Kanungo, Jubbal on the issue within three days.
::: Downloaded on - 05/01/2024 20:35:10 :::CIS 3Field Kanungo submitted a report that he had carried out the demarcation and found that the passage was blocked on the .
Government land bearing Khasra No. 1286/1, measuring 00-03- 03 hectares. Pradhan, Up-Pradhan and the local public stated that the people used the passage, which was blocked by Pradhan Singh-respondent. Respondent had also encroached upon of Khasra No. 1286/1, measuring 00-03-03 hectares. A tatima of the encroachment was prepared. A noting was prepared by the rt Reader that as per the report, the passage was blocked by Pradhan Singh and it was appropriate that action should be taken against him under Section 133 of Cr.P.C. Learned SDM ordered that as the status quo had been ordered by the learned JMIC in the matter; hence the orders passed on the next date of hearing should be awaited.
4. The file was again put up with the noting by the Reader that the status-quo order had been vacated; hence, the file was placed for further orders. Learned SDM passed an order "Institute case under Section 133 of Cr.P.C. and conditional order for removal of nuisance within seven days. The next date of hearing be fixed for 17.7.2023." The respondent appeared and submitted a reply. The notices were issued to Pradhan, Vice-
::: Downloaded on - 05/01/2024 20:35:10 :::CIS 4Pradhan, Secretary, and Veterinary Pharmacist, returnable for 25.7.2023. On 25.7.2023, none appeared on behalf of the .
respondent whereas the witnesses were present. Learned SDM held that from the perusal of the statements of all present, it was evident that there was a dire need to restore the path. An interim order under Section 142 of Cr.P.C. was passed as per the separate of detailed order. Copy of the order was ordered to be sent to the respondent, Tehsildar, Jubbal, SHO, Jubbal for compliance.
rt
5. Being aggrieved from the order passed by learned SDM, the present petition has been filed asserting that the petitioner is a co-owner in possession of the land bearing Khasra Nos. 1279 and 1284. This land was acquired by his ancestors as per the provisions of Himachal Pradesh Nautor Rules, 1968. The Department has no right over the land. The Government proposed the construction of an Ayurvedic Dispensary on the adjacent land in the year 2016. The Government also proposed the construction of a Veterinary Dispensary in the year 2017. There is a private building next to the Government land in which the Ayurvedic Dispensary and Veterinary Dispensary have been functioning since 1982. There is a pre-existing path in the land of Smt. Sushma Sohta, Pradhan ::: Downloaded on - 05/01/2024 20:35:10 :::CIS 5 of the Gram Panchayat and Lovely Sohta, Ward Member adjacent to the land of the respondent. The construction material was .
taken through the pre-existing path. They approached the SDM to divert the path through the land of the respondent. SDM, Jubbal called the respondent on 15.5.2023 at 11.00 AM and asked him to be present on the spot. The respondent reached the spot.
of SDM and other persons were present. The SDM ordered the demolition of the fence constructed by the respondent on his rt land. The respondent requested the SDM not to interfere in his land but SDM did not listen to him. SDM and other persons also tried to construct a road through the land of the respondent.
Respondent filed a complaint against them; however, no action was taken on his complaint. The SDM ordered the demolition of the fence on 15.5.2023. The respondent approached the Civil Court and filed a civil suit. He also filed an application under Section 156(3) of Cr.P.C. The respondent received an order from the office of SDM on 25.7.2023 vide which he was directed to open the path or to appear before him on 17.7.2023. The respondent appeared before the SDM on 17.7.2023. No copies were handed over to him and the matter was listed on 25.7.2023.
The respondent was present but his presence was not marked.
::: Downloaded on - 05/01/2024 20:35:10 :::CIS 6An order under Section 142 of Cr.P.C. was passed against him.
The order is against the law. The respondent is in possession of .
the disputed land and he has constructed a fence. He has not encroached upon the Government's land. No demarcation was conducted. A complaint under Section 156(3) Cr.P.C. is pending and the order was passed by the learned SDM in a mala-fide of manner. Therefore, it was prayed that the present petition be allowed and the order passed by learned SDM be set aside. A rt prayer was also made to quash the criminal proceedings in its entirety.
6. I have heard Mr P.P. Chauhan, Advocate through video conferencing, Mr Rihan and Ms Aditi Rana, learned Counsel for the petitioner, Mr. Prashant Sen learned Deputy Advocate General for respondents no. 1 to 6, Mr V.S. Chauhan, learned Senior Counsel, assisted by Mr. Vanshaj Azad, learned counsel for respondents no. 7 and 8 and Mr. Parveen Chauhan, learned counsel for respondent No. 9.
7. Mr. P.P. Chauhan, learned counsel for the petitioner submitted that the learned SDM erred in passing the order. He had not passed the conditional order, which is the requirement ::: Downloaded on - 05/01/2024 20:35:10 :::CIS 7 for proceeding further. The respondent had appeared before the learned SDM and filed a reply denying the existence of the public .
path. Therefore, it was incumbent upon the SDM to conduct the inquiry in the presence of the respondent. Learned SDM failed to conduct the inquiry. Therefore, he prayed that the present petition be allowed and order passed by learned SDM and the of complaint filed before him be quashed.
8. rt Mr. Prashant Sen, learned Deputy Advocate General for respondents no. 1 to 6, Mr. V.S. Chauhan, learned Senior Counsel and Mr. Parveen Chauhan, learned counsel for respondent no. 9 supported the order passed by learned SDM and submitted that no interference is required with the same.
9. I have given considerable thought to the submissions at the bar and have gone through the records carefully.
10. Section 133 of Cr.P.C. provides as under:-
"133. Conditional order for removal of nuisance.
(1) Whenever a District Magistrate or Sub-Divisional Magistrate or any other Executive Magistrate specially powered 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, consider -
(a) ...
(b) .....::: Downloaded on - 05/01/2024 20:35:10 :::CIS 8
(c) ....
(d) ....
(e) ....
.
(f)......
Such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation, or keeping any such goods or merchandise, or owning, possessing or controlling such building, tent, structure, substance, talk well or excavation, or owning or possessing such animal of or tree, within time to be fixed in the order-
(i) To remove such obstruction or nuisance; or
(ii) ......
rt
(iii)...
(iv)...
(v) ...
(vi)...
or, if he objects so to do, to appear before himself or some other Executive Magistrate Subordinate to him at a time and place to be fixed by the order and show cause, in the manner hereinafter provided, why the order should not be made absolute."
11. It is apparent from the bare perusal of this Section that when an information is received by the Magistrate from the police or somewhere else, he has to satisfy himself that the information relates to the situation contemplated in Section 133 of Cr.P.C. and pass a conditional order requiring the person causing obstruction to remove such obstruction or nuisance and if he objects to do so, to appear before himself or any Magistrate subordinate to him. Section 135 provides that the person to ::: Downloaded on - 05/01/2024 20:35:10 :::CIS 9 whom an order is addressed can perform the act directed in the order or he may appear and show cause against the same.
.
Section 137 provides that where the existence of a public right is denied, an inquiry would be made. Section 138 provides that when the person shows cause, the Magistrate shall take evidence in the same manner as in the summons case. Section 138 (2) of provides that where the Magistrate is satisfied that the order either originally made or subject to such modification as he rt considers necessary is reasonable, the order shall be made absolute without modification or with such modification.
12. It is apparent from the scheme of these Sections that conditional order is the foundation on which the whole of the proceedings rests. If the person to whom the conditional order is directed, accepts the order and complies with the same, the proceedings terminate, but if he feels aggrieved and shows cause, the inquiry has to be conducted and the order can be made absolute, modified or discharged after the inquiry. Thus, the presence of conditional order is necessary before it can be made absolute, modified or discharged. The purpose of passing the conditional order is to make the other party aware of the nature of the order that can be passed in the proceedings. Therefore, it ::: Downloaded on - 05/01/2024 20:35:10 :::CIS 10 puts the other party on notice of the ultimate order and forms part of natural justice.
.
13. In the present case, learned SDM did not pass a conditional order. He simply wrote, "Institute case under Section 133 of Cr.P.C. and issue conditional order for removal of nuisance within seven days". A similar situation arose before of Allahabad High Court in Mangal and other Vs. State of U.P. and rt others 1977 Cri. L. J. 1036, wherein learned SDM had passed an order "issue conditional order under Section 133 of Cr.P.C. and injunction order under Section 142 of Cr.P.C." Allahabad High Court held that it was not a sufficient compliance with the requirement of passing conditional order. It was observed:-
4. In my opinion, there is force in this submission.
According to S. 133 (1) whenever a District Magistrate or a Sub-divisional Magistrate or any other Executive Magistrate specially empowered in that 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 anyway, river or channel which may be lawfully used by public etc., he may make conditional order requiring the persons causing such obstruction to remove the same within the time stated in the order or in case they object to the order, they should appear before him or some other executive Magistrate subordinate to him at a time and place stated in the order and to show ::: Downloaded on - 05/01/2024 20:35:10 :::CIS 11 cause as to why the order be not made absolute. So far as the first order passed by the Sub-Divisional Magistrate on 11- 5-1976 is concerned. It was merely a direction that an order .
under Ss. 133 and 142 of the Code of Cr. Procedure be drawn upon. It is apparent that it was not the formal order under S.133, which had yet to be drafted and signed by him. Coming now to the actual notice issued to the applicant in pursuance of the aforesaid order made by the Magistrate, I find that it merely recites the reason for and the direction issued under S. 142 of the Code. It states that of whereas an enquiry into a conditional order made under S. 133, Cr. P. C. is pending and the information received by the Magistrate showed that an unlawful obstruction or nuisance had been made which was causing imminent rt danger of serious type to the public and such danger had to be prevented, accordingly order under S. 142, Cr. P. C. requiring the applicant to demolish the said construction was being made. On the face of it, this order does not partake the nature of an order which is to be made under S. 133, Cr. P. C, It is not in the nature of a conditional order requiring the applicant either to do something within the time specified therein or to show cause. It appears that the Magistrate passed the order requiring the Officer to draw up an order under S. 133, Cr. P. C. and expected that the officer would draw up such an order for him and place the same for his signature. This in my opinion, was not in accordance with the law.
5. Learned counsel for the opposite parties urged that in the notice issued to the applicant on the same date, it was mentioned that the applicant had encroached upon the public way by raising a wall. Accordingly, it cannot be denied that the learned Magistrate had formed an opinion that the obstruction by way of encroachment had been made on a public way and that it deserved to be removed Requirement of S. 133, Cr, P. C., therefore, had been substantially complied with and no interference in revision is called for. I am unable to accept this submission. In the first place, the notice copy of which ::: Downloaded on - 05/01/2024 20:35:10 :::CIS 12 has been filed as Annexure 3 cannot be equated with an order under S. 133 Cr. P. C. Aforementioned facts were recited merely to indicate the circumstances in which an .
order under S. 142, Cr. P. C. was being passed. In any case, even if the order dated 11th May 1976 is read along with notice prepared on 11th May 1976, it would still not comply with the remaining requirements of S. 133 of the Code of Cr. Procedure namely that the applicants should have been told that they could appear before the court on the date and place fixed by it and file such objection to the of conditional order as they liked. There is no escape from the position that in this case no proper order under S. 133, Cr. P. C. has been issued.
6. At this stage I would like to point out that in order to rt facilitate passing of orders under S. 133, guidance has been provided in the shape of Form No. 20, appended to Sch. II of the Code of Cr. Procedure. The subordinate courts would do well to keep the form in mind while passing an order under S. 133 of the Code of Cr. Procedure.
14. It was laid down by Hon'ble Madras High Court in Ind Barath Powergencom Ltd. Vs. Revenue Divisional Officer-cum-Sub Divisional Magistrate, 2012 (1) RCR (Criminal) 442 that the conditional order is mandatory. It was observed:
"21. In this context, the learned counsel Mr M. Ajmalkhan placed much reliance upon a decision of the Honourable Supreme Court [C.A. Avarachan v. C.V. Sreenivasan, 1996 7 SCC 71] wherein Their Lordships have observed as follows:
"4. In our opinion, the omission on the part of the Sub-Divisional Magistrate to draw up a preliminary order, which is a sine qua non for initiating proceedings under Section 133 of the Code of Criminal Procedure and without following the procedure provided for by Section 138 Criminal Procedure Code, the order made by the Sub-::: Downloaded on - 05/01/2024 20:35:10 :::CIS 13
Divisional Magistrate on 13/1/1988 is unsustainable and is vitiated. The High Court fell in error in not properly appreciating the effect of non-compliance .
with the mandatory requirements of drawing up a preliminary order before proceedings under Section 133 Criminal Procedure Code. Neither the order of the High Court nor that of the Sub- Sub-Divisional Magistrate can, therefore, be sustained."
22. In the above-mentioned case, the Sub-Divisional Magistrate without drawing up the preliminary order of proceeded with the enquiry. By consent of the parties, he appointed a Commissioner, who filed a fact-finding report. Without enquiring about the parties and without affording sufficient opportunities to both, the Sub-
rt Divisional Magistrate proceeded to pass the order closing down the quarry permanently. Hence, the Supreme Court has held that the Sub-Divisional Magistrate, before passing the order of closure of the quarrying unit, had not drawn up a preliminary order which is a sine qua non for initiating proceedings under Section 133 of Cr.P.C. and since he has passed the order under Section 138 Cr.P.C. without following the procedure, it is unsustainable.
23. The first respondent should have drawn up a preliminary order under Section 133 Cr.P.C. before passing the final order. Without adopting the procedures contained in Section 133 Cr. P.C and 138 Cr.P.C., he has passed the order as if it is the final one. The Executive Magistrate is bound to observe the procedures adumbrated in Section 138 of Cr.P.C. before making the order absolute, as per the circumstances warranted. Section 138 reads as follows:
138. Procedure where he appears to show cause.
(1) If the person against whom an order under section 133 is made appears and shows cause against the order, the Magistrate shall take evidence in the matter as in a summons case.::: Downloaded on - 05/01/2024 20:35:10 :::CIS 14
(2) If the Magistrate is satisfied that the order, either as originally made or subject to such modification as he considers necessary, is .
reasonable and proper, the order shall be made absolute without modification or, as the case may be with such modification.
(3) If the Magistrate is not so satisfied, no further proceedings shall be taken in the case.
24. In the present case also, there is no preliminary conditional order, calling upon the persons to show cause of why the ban should not be imposed on them. The first respondent proceeded to pass the order without hearing them, banning the entire operation. In view of the law laid rt down by the Supreme Court, it has necessarily to be observed that the impugned order is not valid in law."
15. Therefore, the proceedings in the present case would not be sustainable in the absence of the conditional order.
16. Heavy reliance was placed upon the order passed for the removal of the nuisance to submit that this can be construed as a conditional order. This submission is not acceptable. This is a notice issued pursuant to the order passed by the learned SDM and cannot be equated to a conditional order. Even if this order is seen, it merely states that it was made to appear to the learned SDM that the respondent had caused obstructions to the persons using the path leading to the Veterinary Dispensary and Ayurvedic Dispensary, Dhar and such obstruction still existed.
Section 133 of Cr.P.C. provides that the Magistrate should ::: Downloaded on - 05/01/2024 20:35:10 :::CIS 15 consider that obstruction or nuisance should be removed from a public place or any way, river or channel which is or may .
lawfully be used by the public. Therefore, the existence of the use by the public is a necessary condition before the order under Section 133 of Cr.P.C. can be passed. The notice issued by learned SDM nowhere mentions that the path was being used by the of public and merely mentions that obstruction was being caused to the persons using the path. It is also apparent from the rt perusal of Section 137 that where a person appears, the Magistrate has to question him as to whether he denies the existence of any public right in respect of the way, river, channel or place. In the present case, the proceedings are quite silent regarding the right of the public to use the passage. Learned SDM had also not recorded his satisfaction that the public had a right to use the path and the respondent was obstructing the path. Therefore, in these circumstances, the Magistrate erred in proceeding further without recording his satisfaction.
17. It was laid down in T.P. Rajeevan vs. Sub Divisional Magistrate and another 1986 CRI. L. J. 693 that the Magistrate must have his satisfaction regarding the existence of a particular state of affairs enumerated under Section 133(1). It was ::: Downloaded on - 05/01/2024 20:35:10 :::CIS 16 observed:-
4. It follows that even at the time of issuing the .
preliminary order, the Magistrate must have his satisfaction regarding the existence of a particular stage of affairs enumerated in S. 133(1)(d).
5. Article 227 of the Constitution gives every High Court the power of superintendence over all the Courts and tribunals throughout the territories in, relation to which it exercises jurisdiction In the exercise of such of jurisdiction, the High Courts are given the power to make and issue general rule and prescribe forms regulating the practice and proceedings of such Courts and to prescribe rt forms. S. 476 of the Cr. P. C. provides that subject to the abovesaid power of the High Courts, the forms set forth in the Second Sch. with such variations as the circumstances of each case require, may be used for the respective purposes therein mentioned. So far as the present case is concerned, the form prescribed under Sch. II is applicable.
According to the said form, after setting forth the grounds, the person against whom the conditional order is issued will have to be called upon to comply with the order or require him to appear and show cause as stated in S. 133(1). The compliance of this formality is an essential ingredient in observing the principle of natural justice. Only on compliance with that provision, the Magistrate gets jurisdiction to proceed further under Ss.
137 and 138.
6. The disputed provision is not intended to help private parties in wreaking vengeance between themselves or in settling their private disputes for which they will have to approach the competent forum. The Sub Divisional Magistrate is discharging a public duty cast on him for the purpose of avoiding something which, though not come within the definition of public nuisance as defined in the Indian Penal Code, is treated as a public nuisance for the purpose of S. 133. For the purpose of S. 133, it need not be a nuisance to the public at large. Possible injuries ::: Downloaded on - 05/01/2024 20:35:10 :::CIS 17 to an individual alone may be sufficient in given cases. For the purpose of that provision, such a restricted definition of public nuisance is within the limits of law.
.
Anyhow there must be some material for the satisfaction of the Sub Divisional Magistrate for the purpose of issuing a conditional order under S. 133(1).
7. The Magistrate will have to be careful in order to avoid the contingency of litigants making use of the provision as a substitute for enforcement of their private rights for which they will have to approach the Civil Court or other of competent forum. One of the objects of S. 133 must be understood to be the prevention of frivolous litigations. After the conditional order, the legislature has provided two enquiries in two stages. One is the preliminary rt enquiry provided under S. 137 and the other is the final enquiry contemplated under S. 138.
8. The preliminary stage, as I have stated earlier, is an ex- parte stage. The second and third stages namely, the preliminary and final enquiries are contested stages. The evidence collected at the preliminary ex parte stage cannot be treated as evidence in the enquiry. That is intended only for the satisfaction of the Magistrate for the purpose of issuing the conditional order. It has to be noted that the preliminary order is without notice to the person against whom it is issued and he may not be anywhere in the scene at that stage. At the same time, the person invoking jurisdiction will be on record and he may be able to manipulate things. So also the ex parte evidence collected by the Sub Divisional Magistrate is not having a guarantee of correctness or truthfulness inasmuch as it is collected behind the back of the affected person. At that stage, the affected person is not having the chance to intervene for the purpose of ensuring the correctness of the information that reaches the Sub Divisional Magistrate. That is why it is provided that he will have to be given an opportunity to appear and show cause.
9. Section 137(1) provides that as soon as the person against whom the order was made appears the Magistrate ::: Downloaded on - 05/01/2024 20:35:10 :::CIS 18 will have to question him as to whether he denies the existence of the state of affairs mentioned in the conditional order. If he denies it, before proceeding under .
S. 138, the Magistrate will have to conduct an enquiry under S. 137(2) to find whether there is any reliable evidence in support of such denial. If he finds that there is reliable evidence in support of such denial, the Magistrate will have to stay the proceedings until the matter of the existence of the right has been decided by a competent Civil Court. If only he finds in the preliminary enquiry of that there is no such evidence, he shall proceed as laid down in S. 138.
18. The respondent appeared before the learned SDM rt and filed a reply stating that no obstruction was caused by him in any public place or any way which is or may be lawfully used by the public. The learned SDM passed an order issuing the notices to the witnesses returnable on 25.7.2023, however, on that day, the respondent was not present. Learned SDM conducted the inquiry ex-parte. Section 138(1) provides that if the person against whom an order under Section 133 of Cr.P.C.
appears and shows cause against the order, the Magistrate shall take the evidence as in a summons case. Section 273 of Cr.P.C.
provides that except as otherwise expressly provided on evidence taken in the course of a trial or other proceedings shall be taken in the presence of the accused or where his attendance is dispensed with in the presence of his counsel. It was laid down ::: Downloaded on - 05/01/2024 20:35:10 :::CIS 19 in Kartika Ram vs. Jagan Nath Mishra 1964 Cr.L.J. 248 that the inquiry cannot be conducted ex parte. It was observed:
.
4. Mr. Misra also relied on a recent Division Bench decision reported in Darsan Ram v. State, AIR 1959 Pat 81 where it was held that an enquiry under Section 139-A Criminal Procedure Code was of an ex parte summary nature and urged that as in this case, both parties were fully heard it must be presumed that the petitioner was of aware that the enquiry was held under Section 137 and not under Section 139-A.
5. No such presumption can however be made unless there is some evidence on record to show that the rt petitioner was aware of the principle laid down in AIR 1959 Pat 81. Merely because the Magistrate directed both parties to adduce evidence it cannot be inferred that the petitioner must have been aware that the enquiry was really being held under Section 137 and not under Section 139-A, Criminal Procedure Code. Even an enquiry under Section 139-A cannot necessarily be ex parte, because the party (here the Opposite Party) on whose application the proceeding under Section 133 Criminal Procedure Code was initiated would always be in attendance. Hence when the petitioner denied the right of public way over the path in question and wanted to show that the evidence in support of such denial was reliable, the rival party would be entitled to show that such evidence was not reliable.
This can be done either by cross-examining the witnesses of the petitioner or by adducing evidence on his own behalf. Hence, with great respect, I am not inclined to wholly endorse the observations in AIR 1959 Pat 81 to the effect that an enquiry under Section 139-A Criminal Procedure Code would be ex parte.
::: Downloaded on - 05/01/2024 20:35:10 :::CIS 2019. This position was reiterated in Chokha Ram vs. State of Rajasthan 1994 Cr.L.J. (NOC) 144. Thus, it is not permissible to .
conduct an inquiry under Section 138 of Cr.P.C. ex-parte in the absence of the respondent. Learned SDM erred in holding the inquiry ex-parte.
20. Even the statements recorded by the learned SDM of were not as per law. Learned SDM recorded combined rt statements by Sushma Sohta, Pradhan, Manoj Chauhan, Up-
Pradhan and separate statements of Balbir Singh and Prashant Joshi. There is nothing like a combined statement in a Court of law. The people do not talk in unison and even if they do, the Court has to record their separate statements. Thus, the inquiry conducted by learned SDM was not as per law.
21. Learned SDM passed an interim order under Section 142 of Cr.P.C. He stated in the interim order that the reply was considered and was not found satisfactory, however, there is nothing in the order sheet to support this assertion. Further, it is not understandable that when learned SDM had conducted an inquiry under Section 138 of Cr.P.C., where was the necessity to issue the injunction under Section 142 of Cr.P.C. because such an ::: Downloaded on - 05/01/2024 20:35:10 :::CIS 21 injunction can be issued pending the inquiry and not after the inquiry. Learned SDM was bound to pass an order under Section .
138(2) or 138(3) of Cr.P.C. after the conclusion of the inquiry and he was not to resort to Section 142 of Cr.P.C.
22. Section 142 of Cr.P.C. provides that immediate measures should be taken to prevent imminent danger or injury of of a serious kind to the public. Learned SDM did not state in the rt order that immediate measures were required to prevent imminent danger or injury of serious kind to the public. It was only stated that pending inquiry, the respondent was ordered to remove the temporary obstruction created by him recently by placing or removing plastic net fencing in this path within three days of the order. It was further stated that if the respondent did not remove this temporary fencing, Tehsildar, Jubbal was directed to remove the fencing to the extent of 1 mtr. only and restore the path as it existed with the help of the police. Thus, the order is silent regarding the immediate measure required to be taken to prevent imminent danger. It was laid down in Mangal (supra) that the order under Section 142 of Cr.P.C. can be passed by a Magistrate making an order under Section 133 of ::: Downloaded on - 05/01/2024 20:35:10 :::CIS 22 Cr.P.C. when the Magistrate is satisfied that immediate measures are to be taken. It was observed:-
.
7. Power to issue an injunction under S. 142, Cr. P. C. can be exercised by a Magistrate making an order under S. 133.
Existence of a proper order under S. 133, Cr. P. C. is a condition precedent for issuing an injunction order contemplated by S. 142 of the Code. In this case, as there is no proper order under S. 133, Cr. P. C. in existence, the of injunction order, a copy of which has been filed as Annexure 3 to the writ petition, can also not be sustained.
8. Further, an injunction under S. 142, Cr. P. C. is not to be issued merely because a conditional order under S. 133, Cr.
rt P. C. has been made. Before issuing such an injunction the court has to satisfy itself that immediate measures have to be taken to prevent imminent danger or injury of a serious kind to the public. The notice dated 11th May 1976 (Annexure 3 to the writ petition) does not indicate the reasons as to why the Magistrate considered that immediate measures had to be taken to prevent imminent danger or injury of serious kind to the public. In my opinion, the learned Magistrate should have before issuing an injunction under S. 142, Cr. P. C. indicated either in the order itself or somewhere in the file of the case, the reasons as to why he considered it necessary to make such an order.
23. Hence, in the present case, learned SDM gravely erred in initiating the proceedings under Section 133 of Cr.P.C.
without passing a formal conditional order, conducting an inquiry in the absence of the respondent that too by recording joint statements and passing an injunction order after recording the statements instead of proceeding under Section 138 of Cr.P.C.
::: Downloaded on - 05/01/2024 20:35:10 :::CIS 23Therefore, the proceedings conducted before the learned SDM cannot be sustained.
.
24. It was submitted that learned SDM erred in conducting the proceedings when the matter was pending before the Civil Court. Reliance was placed upon the judgment of Allahabad High Court in Budhwa and others Vs. State of U.P. and of others 2005 SCC OnLine 1198, however, the Allahabad High Court rt had held that when immediate measures are required, the learned SDM can pass an order under Section 133 of Cr.P.C. It was observed:-
15. The law laid down by Hon'ble the Apex Court, in this case, is that a civil suit decides the rights of the parties and it is a permanent settlement of the rights of the parties, but if the nuisance is existing and urgent relief is required, section 133 Cr. P.C. has to come into play.
Harmonious interpretation of the provisions of Cr. P.C. and the fact of pendency of the civil suit is that if the nuisance is such that there is an urgent need of removal of nuisance or obstruction on the path, the inquiry is to be made by the Magistrate and an order is to be passed. Such right cannot be waived by the Sub Divisional Magistrate merely because some civil suit is pending wherein no specific order has been passed."
25. Therefore, there is no infirmity in conducting the proceedings despite the pendency of the civil proceedings.
::: Downloaded on - 05/01/2024 20:35:10 :::CIS 2426. It was also submitted that the learned SDM had no jurisdiction to pass the order and the proceedings should be .
quashed. This submission is not acceptable. A perusal of the record shows that a complaint was made before the learned SDM regarding obstruction to the public path. The report of the Field Kanungo also shows that the obstruction was caused on the of Government land and not in the private land. Once the obstruction to the public path was brought to the notice of the rt learned SDM, he was duty-bound to proceed further. Hence, it cannot be said that the complaint made to the learned SDM did not disclose sufficient reasons to proceed under Section 133 of Cr.P.C.
27. Consequently, the present petition is partly allowed and the order dated 25.7.2023, passed by learned SDM is set aside. The matter is remitted to learned SDM to proceed further strictly as per law.
28. The parties through their respective counsel are directed to appear before the learned SDM on 27.2.2024.
29. Record of the learned SDM, Jubbal be sent forthwith so as to reach the Court concerned well before the date fixed.
::: Downloaded on - 05/01/2024 20:35:10 :::CIS 2530. The observation made hereinabove shall confined to the disposal of the petition and will have no bearing, .
whatsoever, on the merits of the case.
(Rakesh Kainthla) Judge 5th January, 2024 (Chander) of rt ::: Downloaded on - 05/01/2024 20:35:10 :::CIS