Himachal Pradesh High Court
Reserved On: 22.08.2025 vs State Of H.P on 4 September, 2025
2025:HHC:30210 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No.346 of 2022 Reserved on: 22.08.2025 .
Date of Decision: 04.09.2025
Aashik Ali alias Mithu ...Petitioner
Versus
State of H.P.
...Respondent
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No For the Petitioner : Mr. Karan Singh Kanwar, Advocate.
For the respondent/State : Mr. Ajit Sharma, Deputy Advocate General.
Rakesh Kainthla, Judge The present revision is directed against the order dated 25.05.2022 passed by learned Sub Divisional Magistrate (SDM), Nahan, District Sirmour, H.P. vide which the conditional order dated 23.11.2021 in case No. 165 of 2021 titled State of Himachal Pradesh vs. Aashik Ali under Section 133 of Code of Criminal Procedure (Cr.P.C) dated 23.11.2021 was made absolute. (Parties 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 05/09/2025 21:30:27 :::CISPage |2 2025:HHC:30210 shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience.) .
2. Briefly stated, the facts giving rise to the present petition are that the villagers of Kheri Kherena filed a complaint to the police, asserting that Aashik Ali & Mithu (original respondent) was opening a Poultry Farm at a distance of 15-20 feet from the Shiv Temple, which would hurt the sentiments of the devotees visiting the temple, and pollute the atmosphere. The Panchayat was informed, but no action was taken. Hence, it was prayed that an action be taken in the matter.
3. The police recorded an entry in the daily diary and visited the spot for verification with the Tehsildar, Nahan. It was found on the spot that the respondent had obtained a loan from the Himachal Pradesh Minorities Finance and Development Corporation for operating a poultry farm. He had constructed two sheds, which were almost complete. This land was given to him by his father. The location was approximately 50-60 meters from the temple. The parties agreed to settle the matter amongst themselves within 15 days. There was a possibility of a foul smell emanating from the Poultry Farm, which the villagers were ::: Downloaded on - 05/09/2025 21:30:27 :::CIS Page |3 2025:HHC:30210 opposing. This could lead to the nuisance. Hence, the complaint was filed before the SDM, Nahan, H.P., to take action as per the .
law.
4. The learned SDM, Nahan, recorded the respondent's statement on 03.11.2021, vide which the respondent agreed to settle the matter with the villagers. He also sought help for the shifting of the Poultry Farm. A statement of Jasmainder was also recorded, in which he expressed an apprehension regarding the spread of diseases by the construction of the Poultry Farm. A report was also submitted by the Animal Husbandry Department that permission for the Poultry Farm was given by the local authorities when the number of chicks was less than 5000.
Another report was also submitted by the H.P.State Pollution Control Board stating that the Poultry Farm did not meet the criteria framed by the Board.
5. Learned SDM held that Poultry Farm was being run in contravention of the conditional order issued on 09.11.2021. The respondent had failed to comply with the order of the Court. A foul smell was observed on the spot. Running a poultry Farm could lead to environmental pollution and the spread of diseases. The ::: Downloaded on - 05/09/2025 21:30:27 :::CIS Page |4 2025:HHC:30210 Pardhan had issued a certificate for running the Poultry Farm, but the Gram Sabha did not issue any certificate; therefore, the .
conditional order was made absolute, and the respondent was ordered to remove the chicks from the existing structure. The Poultry Farm was sealed and handed over to SHO Kalaamb;
however, the respondent was permitted to look after and routinely feed the chicks.
6. Being aggrieved by the order passed by the learned SDM, Nahan, H.P., the petitioner has filed the present petition asserting that the complaint was vague and lacked material particulars. No cognisance could have been taken based on such a vague complaint. Only a few villagers had made a complaint. The order states that the villagers had gathered on the spot on 21.05.2022, and the order was passed on 22.05.2022, which shows that the learned SDM had succumbed to the public pressure. The complaint was made after the construction had been completed.
No objection was raised when the construction was being raised.
The petitioner had taken a loan of ₹5,00,000/- for running the Poultry Farm. There was no evidence to show that the Poultry Farm would be injurious to the health and physical comfort of the community. The Gram Panchayat had issued a No Objection ::: Downloaded on - 05/09/2025 21:30:27 :::CIS Page |5 2025:HHC:30210 Certificate, and the respondent had applied for a loan based on such a certificate. The Poultry Farm was being run within the four .
corners of the law. Therefore, it was prayed that the present petition be allowed and the order passed by the learned SDM, Nahan, District Sirmour, H.P., be set aside.
7. I have heard Mr. Karan Singh Kanwar, learned counsel for the petitioner and Mr. Ajit Sharma, learned Deputy Advocate
8. to General, for the respondent/State.
Mr. Karan Singh Kanwar, learned counsel for the petitioner, submitted that the petitioner was running his Poultry Farm within the four corners of the law. There was no evidence that it was causing a nuisance to the public. The order was passed on the day following the SDM's visit to the spot under public pressure. Therefore, he prayed that the present petition be allowed and the order passed by the learned SDM, Nahan, H.P., be set aside.
9. Mr. Ajit Sharma, learned Deputy Advocate General, for the respondent, supported the order passed by learned SDM, Nahan, District Sirmour, H.P. and submitted that no interference is required with it.
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10. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.
.
11. Section 133(1) of Cr.P.C. provides that a Magistrate or Sub-Divisional Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation, to remove such obstruction or nuisance, to desist from carrying on, or remove, or regulate such trade in such manner as may be directed, or occupation or goods or merchandise, or to regulate the keeping thereof in such manner as may be directed.
12. In the present case, the learned SDM had passed the following order:
"...09.11.2021 This report has been received through the S.H.O. Police Station Kalaamb Under Section 133 Cr.P.C. The complainants had filed a complaint, and the Police has inquired into the matter, recorded statements and procured documents, etc. I have gone through the contents of the complaint and statement recorded, whereby it appears that there is apprehension of breach of peace and public tranquillity.
In view of the above facts, the conditional order under Section 133 Cr.P.C. be issued to the respondent to appear in the court on 04/02/2022 at 2:00 P.M. and show cause, as to why said order should not be made absolute. The case file be registered and come up for service of the respondent on 04/02/2020."::: Downloaded on - 05/09/2025 21:30:27 :::CIS
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13. The order does not mention the steps to be taken by the respondent, and does not conform to the requirement of Section .
133 of the CrPC. The respondent was directed for the first time on 22.05.2022 to remove the chicks from the existing structure by making the conditional order absolute. When no conditional order requiring the respondent to remove the chicks from the Poultry Farm was passed, no order could have been made absolute. It was laid down by the Allahabad High Court in Mangal and others v. State of U.P. and others, 1977 Cri. L. J. 1036, that the passing of a conditional order is essential to initiate proceedings under Section 133 of the CrPC. It was observed: -
4. 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 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. A procedure is ::: Downloaded on - 05/09/2025 21:30:27 :::CIS Page |8 2025:HHC:30210 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 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 danger of a 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 that was being made. On the face of it, this order does not partake in 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 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 ::: Downloaded on - 05/09/2025 21:30:27 :::CIS Page |9 2025:HHC:30210 May 1976 is read along with the 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 an objection to the 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 facilitate the 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. In the present case, no conditional order was passed, and the order passed by the learned SDM, Nahan, H.P., cannot be sustained.
15. The record of the learned SDM, Nahan, District Sirmour, H.P., does not show that any evidence was recorded. The reports were called from the office of the Animal Husbandry and Pollution Control Board. The statements of the respondent and Jasminder were recorded on 03.11.2021. Learned SDM had visited the sport and made the observations himself. He relied upon the reports submitted by the Pollution Control Board and the Animal Husbandry Department. It was held by Orissa High Court in Birabhanu Mohapatra vs. Narender Nath Mohanty 2004 (3) Crimes 304 that the complainant has to prove before the Court by legal ::: Downloaded on - 05/09/2025 21:30:27 :::CIS P a g e | 10 2025:HHC:30210 evidence that there is an obstruction, and reliance cannot be placed upon the report submitted by the officer-in-charge and .
documents placed before the Court. It was observed:-
"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 or any other Executive Magistrate specially empowered in this behalf by the State Government, on receiving the report of a police officer or their 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 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 another v. State of U.P. and others, 1991 Crl. 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 Criminal Procedure Code 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 others v. Biswanath Panda, 2002(1) O.L.R. 126. This Court in the aforesaid case held that an order under Section 133, Criminal ::: Downloaded on - 05/09/2025 21:30:27 :::CIS P a g e | 11 2025:HHC:30210 Procedure Code, should not be made solely relying on the report submitted by the officer-in-charge of the police station and documents placed before the Court. An inquiry is required to be made."
.
16. Therefore, it was obligatory for the learned Magistrate to record the evidence, and it was impermissible to rely upon the reports submitted by the Animal Husbandry Department and H.P. State Pollution Control Board.
17. Consequently, the present petition is allowed and the order dated 22.05.2022 passed by the learned Sub Divisional Magistrate, Nahan, District Nahan, H.P. in case No. 165 of 2021 is set aside. However, this order will not prevent the learned SDM, Nahan, District Sirmour, H.P., from taking action as per law, if so advised and deemed necessary.
18. In view of the above, the present petition stands disposed of, so also the pending miscellaneous application(s), if any.
19. A copy of the judgment, along with records of the learned Courts below, be sent back forthwith.
( Rakesh Kainthla ) Judge 04th September, 2025 (ravinder) ::: Downloaded on - 05/09/2025 21:30:27 :::CIS