Dr. Arun Rai vs 1. The State Of Jharkhand 2. Dinesh Kumar Rana

Cr.M.P. No.2015 of 2017 ------Dr. Arun Rai, son of Late Shiv Pujan Rai, resident of Sandwell Nursing Home, Mission Road, P.O., P.S. & District-Hazaribagh.

… Petitioner Versus

The State of Jharkhand

Dinesh Kumar Rana, son of Late Awadh Kishore Rana, resident of Banshi Lal Chowk, P.O, P.S. & District-Hazaribagh.

… Opposite Parties ------For the Petitioner : Mr. Binod Kumar, Advocate : Mrs. Nanda Kumari, Advocate For the State : Mrs. Kumari Rashmi, Addl.P.P. For the O.P. No.2 : Mr. Ajay Kr. Sah, Advocate ------

HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard the parties.

This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with the prayer to quash and set aside the order dated 30.06.2017 passed by learned Sessions Judge, Hazaribagh in Criminal Revision No.27 of 2017 whereby and where under the learned Sessions Judge, Hazaribagh has dismissed the criminal revision. Prayer has also been made to quash the order dated 13.02.2017 passed by the learned Sub-Divisional Magistrate, Hazaribagh in Case No.13 of 2016 directing the Circle Officer, Sadar, Hazaribagh to take measurement of the land and remove the encroachment over the road.

The brief fact of the case is that the opposite party no.2 submitted an application to the SDM, Sadar, Hazaribagh through the office of the Commissioner for necessary action wherein it has been mentioned that the petitioner herein who was the member of the second party of the said case no.13 of 2016 being proprietor of a medical clinic obstructed the way by making boundary wall. The Additional Collector, Hazaribagh submitted his report after considering the matter, the SDM, Sadar, Hazaribagh initiated a proceeding under Section 133 of Cr.P.C. on 30.12.2016. The second party filed show cause, the SDM, Sadar, Hazaribagh ordered that the measurement of the land by an Amin is necessary in presence of Magistrate and fixed the date on 13.02.2017 for report of the Amin and passed the said order dated 13.02.2017 in the said Case No.13 of 2016.

Being aggrieved by the said order, the petitioner filed Criminal Revision No.27 of 2017. It was contended by the petitioner herein before the learned Revisional Court being the learned Sessions Judge, Hazaribagh that the petitioner purchased the land measuring 0.78 acres of plot nos.774 & 803 of Khata No.131 in village Cantonment, Hazaribagh along with other lands purchased by the father of the petitioner in the name of his mother Vindya Basini Devi by registered sale deed no.1806 in the year 1942 and since then he has been in possession and the land has been mutated and rent was also paid. The building was constructed in the year 1987 and the said building is used as residence as well as for running nursing home. It was also contended that in an arbitrary and mala fide manner, the SDM, Sadar, Hazaribagh passed the said order dated 13.02.2017 in the said Case No.13 of 2016 for removing the alleged encroachment. It was also contended that the proceeding under Section 133 Cr.P.C. can be initiated only in connection to “public place” and not in regard to private property and the land in question is private land. The portion of the boundary wall was demolished in presence of Circle Officer, Hazaribagh without following the mandatory provision of Section 133 & 136 of Cr.P.C. and the same was countered by the opposite party no.2 herein.

The learned Sessions Judge, Hazaribagh considered the principle of law involved in proceeding under Section 133 of Cr.P.C. and also considered that under Section 139 of Cr.P.C., Executive Magistrate is empowered to direct local investigation and in this case, the Circle Officer, Hazaribagh was directed for measurement of the land; who after measurement submitted report to the SDM, Sadar, Hazaribagh and a passage used as road was found in between plot nos.774 and 803 and after finding no illegality in the order impugned before it, dismissed the criminal revision.

Learned counsel for the petitioner submits that the learned Sessions Judge, Hazaribagh dismissed the revision petition without appreciating the contention of the petitioner and without affording any opportunity to the petitioner to adduce evidence. It is next submitted that the learned Sessions Judge, Hazaribagh failed to appreciate that under Section 133 of Cr.P.C., the SDM, Hazaribagh had to pass a conditional order for a fixed time and has to follow the procedure; when existence of public right is denied and if the person against whom the order under Section 133 of Cr.P.C. is made appears and show cause against the order, the Magistrate has to take evidence in the matter as in a summon case, but in the present case no such mandatory provision of law has been followed.

In support of his contention, the learned Counsel for the petitioner relies upon the judgement of the Hon’ble Patna High Court in the case of Shakuntala Devi & Others vs. State of Bihar through District Magistrate & Other reported in 2024 SCC OnLine Pat 5989 wherein the Hon’ble Patna High Court relied upon the judgment of the Hon’ble Supreme Court of India in the case of Vasant Manga Nikumba vs. Baburao Bhikanna Naidu reported in 1995 Supp (4) SCC 54 wherein the Hon’ble Supreme Court of India has held that the object and public purpose behind Section 133 of Cr.P.C. is to prevent public nuisance and if the Magistrate fails to take immediate recourse to Section 133 of Cr.P.C. irreparable damage would be done to the public. The exercise of the power should be one of judicious discretions objectively exercised on pragmatic consideration of the given facts and circumstances from the evidence on record.

Learned counsel for the petitioner next relies upon the judgement of the Hon’ble High Court of Rajasthan in the case of Smt. Sudhanarayan vs. Prem Phutela reported in 2002 SCC OnLine Raj 964 wherein in the facts of that case when the trial of the case was not conducted as summons case and provisions of summons case were not complied with as the aggrieved party did not lead any evidence in the first instance which could have been led by him; the impugned order was quashed. It is lastly submitted that the prayer as prayed for by the petitioner in this Cr.M.P., be allowed.

Learned Addl.P.P. appearing for the State and the learned counsel for the opposite party No.2 on the other hand vehemently oppose the prayer of the petitioner made in the instant Cr.M.P and submit that no illegality has been committed by the learned SDM, Sadar Hazaribagh in passing the order dated 13.02.2017 in Case No.13 of 2016 nor any illegality has been committed by the learned Sessions Judge, Hazaribagh in passing the order dated 30.06.2017 in Criminal Revision No.27 of 2017. Therefore, it is submitted that this Cr.M.P., being without any merit, be dismissed.

Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to refer Section 133(1) of Cr.P.C. of which reads as under:-

Whenever a District Magistrate or Sub-Divisional Magistrate or any other Executive Magistrate specially empowered 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, considers-a. That any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel which is or may be lawfully used by the public. b. that the conduct of any trade or occupation, or the keeping of any goods or merchandise, is injurious to the health or physical comfort of the community, and that in consequence such trade or occupation should be prohibited or regulated or such goods or merchandise should be removed or the keeping thereof regulated; or c. that the construction of any building, or, the disposal of any substance, as is likely to occasion conflagration to explosion, should be prevented or stopped; or d. that any building, tent or structure, or any tree is in such a condition that it is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by, and that in consequence the removal, repair or support of such building, tent or structure, or the removal or support of such tree, is necessary; or e. that any tank, well or excavation adjacent to any such way or public place should be fenced in such manner as to prevent danger arising to the public; or f. that any dangerous animal should be destroyed, confined or otherwise disposed of, 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 or possessing or controlling such building, tent, structure, substance, tank, well or excavation, or owning or possessing such animal or tree, within a time to be fixed in the order –

It is a settled principle of law that drawing up preliminary order is a sine qua non for initiating proceeding under Section 133 Cr.P.C. Omission to do so and non-observance of the procedure provided for by Section 138 of Cr.P.C. makes the order unsustainable and vitiates it as has been held by the Hon’ble Supreme Court of India in the case of C.A. Avarachan vs. C.V. Sreenivasan reported in (1996) 7 SCC 71.

Now coming to the facts of the case, the plain reading of Section 133(1) of Cr.P.C. makes it abundantly clear that the same envisages that whenever inter alia a SDM on receiving the report of police or other information and from taking such evidence thinks it fit inter alia any unlawful obstruction or nuisance to be removed, such Magistrate has to make a conditional order requiring the person causing such obstruction or nuisance within the time to be fixed in the order to remove such obstruction or nuisance and if such persons objects to do so, to appear before the SDM or any Executive Magistrate sub-ordinate to him at any time fixed by the order and show cause in the manner provided in the Code of Criminal Procedure as to why order should not be made absolute.

Perusal of the record reveals that no such preliminary order was passed in this case and straightway, the impugned order dated 13.02.2017 has been passed without mentioning the plot number, khata number of the land or whether the land is a public or private land, hence, this Court is of the considered view that the order dated 13.02.2017 passed by the learned Sub-Divisional Magistrate, Hazaribagh in Case No.13 of 2016 is not sustainable in law and the learned Sessions Judge has also committed a grave illegality by not appreciating this illegality in the order impugned before it, hence, the order dated 30.06.2017 passed by learned Sessions Judge, Hazaribagh in Criminal Revision No.27 of 2017 is also not sustainable in law and is liable to be quashed and set aside.

Accordingly, both the order dated 13.02.2017 passed by the learned Sub-Divisional Magistrate, Hazaribagh in Case No.13 of 2016 and the order dated 30.06.2017 passed by learned Sessions Judge, Hazaribagh in Criminal Revision No.27 of 2017, are quashed and set aside.

In the result, this Cr.M.P., is allowed to the aforesaid extent only.