Partly allowed

Amro Devi v. State of Hp and Ors.

Himachal Pradesh HC16 Jul 2024CRMMO/126/2022

Case brief

AI extract

What is this about?

The High Court of Himachal Pradesh examined whether it could entertain a petition under Section 482 CrPC despite a prior revision under Section 397(1) CrPC having been dismissed. The Court held that inherent powers under Section 482 remain available to correct miscarriages of justice. Additionally, the Court quashed the lower appellate order, holding that the Sub-Divisional Magistrate erred in passing a final order based solely on a local inspection without following mandatory inquiry procedures under Sections 137 and 138 CrPC.

What did the court decide?

Petition allowed to the extent of invoking inherent jurisdiction. Orders of Sub-Divisional Magistrate and Additional Sessions Judge set aside. Matter remanded for proceedings per law.

Amro Devi Vs State of Hp and Ors. — Civil Procedure and Limitation | Himachal Pradesh HC (2024)

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Neutral Citation No.(2024:HHC:5182). IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr.MMO No.126 of 2022 Reserved on 17.06.2024 Date of Decision:-16.07.2024

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Amro Devi	V	……...Petitioner ersus
State of H.P. and Othe	rs	…....Respondents
Coram
Hon’ble Mr Justice Rak	esh	Kainthla, Judge.
*Whether approved for*	*repo*	*rting?¹Yes.*
For the Petitioner	:	Mr. Vipin Pandit, Advocate.
For the Respondents	:	Mr. Lokender Kutlehria, Additional Advocate General, for respondents No.1,4 and 5.
	:	Mr. G.D. Verma, Senior Advocate, with Mr. Sumit Sharma, Advocate, for respondent No.3.

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Rakesh Kainthla, Judge.

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The present petition is directed against the order dated 09.12.2021 passed by learned Additional Sessions Judge, Hamirpur, H.P. (learned Revisional Court) vide which the revision preferred by the petitioner (Revisionist before learned Revisional Court) was dismissed and the order passed by learned Sub-Divisional Magistrate, Bhoranj (learned Trial Court) was upheld. (Parties shall hereinafter be referred to in

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1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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the same manner as they were arrayed before the learned Trial Court for convenience.

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Briefly stated, that the facts giving rise to the present petition are that Secretary, Gram Panchayat, Bhoranj sent a letter to SDM, Bhoranj stating that Panchayat found that the respondent (Amro Devi) had dug a pit for storing the Cow Dung Manure. It ordered that the same should be closed by erecting the walls so that there is no problem of insects and foul smell. Panchayat had granted 45 days to the respondent to comply with the order passed by it. However, the respondent failed to comply with the order. The Panchayat granted 15 days more time, but the respondent failed to take any action. Hence, the matter was referred to the SDM, Bhoranj for taking appropriate action.

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Learned SDM passed a condition order under Section 133 of Cr.P.C. on 30.12.2019. The respondent appeared before the learned Trial Court and filed a reply asserting that she was falsely implicated and had not done anything. There was no pollution. No foul smell was emanating on the spot from the vermicompost plant. False allegations were made against her. The plant was constructed

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about 20 years ago with the financial assistance provided by the Government of Himachal Pradesh through BDO, Bhoranj. The plant complied with the norms laid down by the Government of Himachal Pradesh for constructing a vermicompost plant. There is a dispute between the parties regarding the boundaries of the land and the respondent has applied for demarcation. The respondent had lost her vision and had to undergo major surgery at AIIMS, New Delhi. The complainant initiated the proceedings taking advantage of the absence of the respondent. Hence, it was prayed that the notice be discharged.

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Learned SDM inspected the spot and found that the vermicompost plant was on the way to the house of the complainant at a distance of 5-10 feet from the path. 2-3 houses were located at a distance of 5-10 feet from the plant. The plant was open from the sides and was adjacent to the road. The plant generated a visual nuisance. There was no foul smell due to the winter, but the same could be present during the summer and rainy seasons. Learned SDM was satisfied that the plant was a public nuisance. Hence, the respondent was ordered to put a roof on the plant and cover it with mesh wires/matting to remove the nuisance.

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Being aggrieved from the order passed by the learned Trial Court, the respondent filed a revision which was decided by the learned Additional Sessions Judge. Learned Revisional Court held that the respondent was duly served and she had filed a reply. Learned Trial Court had jurisdiction to pass a conditional order under Section 133 of Cr.P.C. Learned SDM visited the spot and found that the vermicompost plant was causing a nuisance. He had not ordered the removal of the plant but had merely passed an order to construct a wall up to the roof height and to cover it with the roof. Since the learned SDM had visited the spot, there was no reason to disbelieve the findings recorded by him. Hence, the revision was dismissed.

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Being aggrieved from the order passed by learned Revisional Court, the respondent has filed the present petition under Section 482 of Cr.P.C. asserting that the learned Courts below erred in ordering the respondent to take steps to remove the nuisance. The respondent had appeared to show cause to the notice issued to her. It was necessary for the learned Trial Court to follow the procedure laid down under Section 138(1) of Cr.P.C. The learned SDM had not passed any order regarding his visit to the spot. There was no nuisance to

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the public at large and the complaint was made to settle the private dispute between the parties. No other person had made any complaint. Therefore, it was prayed that the present petition be allowed and the order passed by learned Courts below be set aside.

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I have heard Mr Vipin Pandit, learned counsel for the respondent (Amro Devi) and Mr G.D. Verma, learned senior counsel assisted by Mr Sumit Sharma, learned counsel for the complainant and Mr Lokender Kutlehria, learned Additional Advocate General for the respondent/State.

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Mr Vipin Pandit, learned counsel for the respondent (Amro Devi) submitted that the learned Courts below erred in holding that the vermicompost plant of the respondent constituted a nuisance to the public. No person except the complainant had made a complaint regarding the nuisance. The learned SDM had also failed to conduct the inquiry under Section 138 after the respondent had denied the existence of a nuisance. Hence, he prayed that the present petition be allowed and the orders passed by learned Courts below be set aside.

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Mr. G.D. Verma, learned Senior Counsel assisted by Mr. Sumit Sharma, learned counsel for the complainant submitted that learned SDM erred in initiating the proceedings under Section 133 of the Criminal Procedure Code. The matter was referred by the Panchayat to him and he was merely to execute the order passed by the Panchayat. The present petition is like the second revision which is not maintainable under Section 482 of Cr.P.C. Therefore, he prayed that the present petition be dismissed.

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I have given considerable thought to the submissions at the bar and have gone through the records carefully.

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The respondent has mentioned in the petition that she has filed a revision under Section 482 of Cr.P.C. which shows that she has approached this Court in the exercise of its revisional jurisdiction which is not permissible. Section 397(3) of Cr.P.C. reads that when an application under this Section has been made by any person either to the High Court or to the Sessions Judge, no further application shall be entertained by either of them. Hence, it is apparent that if a person has filed a revision before the Sessions Court, he is not entitled to

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file a second revision before the High Court. Hence, the Criminal Revision filed under Section 482 of Cr.P.C. will not be maintainable at the instance of the respondent who had preferred the revision before the Sessions Court and had lost the same.

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Mr. Vipin Pandit, learned counsel for the respondent submitted that even though the second revision is barred under Section 397(3) of Cr.P.C., the inherent powers of the Court are not taken away and when the order is without jurisdiction and vitiated by an error of law, the High Court can interfere with the same in exercise of the powers under Section 482 of Cr.P.C. This submission has to be accepted as correct. It was laid down by the Hon’ble Supreme Court in Krishnan Vs. Krishnaveni (1997) 4 SCC 241 that the High Court has inherent power under Section 482 of Cr.P.C. to do complete justice and prevent the abuse of the process of law. It was observed:

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“10. Ordinarily, when revision has been barred by Section 397(3) of the Code, a person — accused/complainant — cannot be allowed to take recourse to the revision to the High Court under Section 397(1) or inherent powers of the High Court under Section 482 of the Code since it may amount to circumvention of the provisions of Section 397(3) or Section 397(2) of the Code. It is seen that the High

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Court has suo motu power under Section 401 and continuous supervisory jurisdiction under Section 483 of the Code. So, when the High Court on examination of the record finds that there is a grave miscarriage of justice or abuse of the process of the courts or the required statutory procedure has not been complied with or there is failure of justice or order passed or sentence imposed by the Magistrate requires correction, it is but the duty of the High Court to have it corrected at the inception lest grave miscarriage of justice would ensue. It is, therefore, to meet the ends of justice or to prevent abuse of the process that the High Court is preserved with inherent power and would be justified, under such circumstances, to exercise the inherent power and in an appropriate case even revisional power under Section 397(1) read with Section 401 of the Code. As stated earlier, it may be exercised sparingly to avoid needless multiplicity of procedure, unnecessary delay in trial and protraction of proceedings. The object of a criminal trial is to render public justice, to punish the criminal and to see that the trial is concluded expeditiously before the memory of the witness fades out. The recent trend is to delay the trial and threaten the witness or to win over the witness by promise or inducement. These malpractices need to be curbed and public justice can be ensured only when trial is conducted expeditiously.

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11. In Madhu Limaye v. State of Maharashtra [(1977) 4 SCC 551: 1978 SCC (Cri) 10] a three-judge Bench was to consider the scope of the power of the High Court under Section 482 and Section 397(2) of the Code. This Court held that the bar on the power of revision was put to facilitate expedient disposal of the cases but in Section 482 it is provided that nothing in the Code, which would include Section 397(2) also, shall be deemed to limit or affect the inherent powers of the High Court. On a harmonious construction of the said two provisions on this behalf, it was held that though the High Court has no power of revision in an interlocutory order, still the inherent

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power will come into play when there is no provision for redressal of the grievance of the aggrieved party. In that case, when allegations of defamatory statements were published in the newspapers against the Law Minister, the State Government decided to prosecute the appellant for an offence under Section 500 IPC. After obtaining the sanction, on a complaint made by the public prosecutor, cognizance of the commission of the offence by the appellant was taken to take trial in the Sessions Court. Thereafter, the appellant filed an application to dismiss the complaint on the ground that the court had no jurisdiction to entertain the complaint. The Sessions Judge rejected all the contentions and framed the charges under Section 406. The Order of the Sessions Judge was challenged in revision in the High Court. On a preliminary objection raised on maintainability, this Court held that the power of the High Court to entertain the revision was not taken away under Section 397 or inherent power under Section 482 of the Code.

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12. In V.C. Shukla v. State through CBI [1980 Supp SCC 92: 1980 SCC (Cri) 695: (1980) 2 SCR 380] (SCR at p. 393) a four-judge Bench per majority had held that sub-section (3) of Section 397, however, does not limit at all the inherent powers of the High Court contained in Section 482. It merely curbs the revisional power given to the High Court or the Sessions Court under Section 397(1) of the Code. In Rajan Kumar Machananda case [1990 Supp SCC 132: 1990 SCC (Cri) 537] the case related to the release of a truck from attachment, obviously on the filing of an interlocutory application. It was contended that there was a prohibition on the revision by operation of Section 397(2) of the Code. In that context, it was held that it was not revisable under Section 482 in the exercise of inherent powers by operation of sub-section (3) of Section 397. On the facts in that case, it was held that by virtue of provisions contained in Section 397(3), the revision is not maintainable. In the Dharampal case [(1993) 1 SCC 435: 1993 SCC (Cri) 333] which

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related to the exercise of power to issue an order of attachment under Section 146 of the Code, it was held that the inherent power under Section 482 was prohibited. On the facts, in that case, it could be said that the learned Judges would be justified in holding that it was not revisable since it was a prohibitory interim order of attachment covered under Section 397(2) of the Code but the observations of the learned Judges that the High Court had no power under Section 482 of the Code were not correct in view of the ratio of this Court in Madhu Limaye case [(1977) 4 SCC 551: 1978 SCC (Cri) 10 ] as upheld in V.C. Shukla case [1980 Supp SCC 92: 1980 SCC (Cri) 695 : (1980) 2 SCR 380] and also in view of our observations stated earlier. The ratio in the Deepti case [(1995) 5 SCC 751: 1995 SCC (Cri) 1020] is also not apposite to the facts in the present case. To the contrary, in that case, an application for discharge of the accused was filed in the Court of the Magistrate for an offence under Section 498-A IPC. The learned Magistrate and the Sessions Judge dismissed the petition. In the revision at the instance of the accused, on a wrong concession made by the counsel appearing for the State that the record did not contain allegations constituting the offence under Section 498-A, the High Court without applying its mind had discharged the accused. On appeal, this Court after going through the record noted that the concession made by the counsel was wrong. The record did contain the allegations to prove the charge under Section 498-A IPC. The High Court, since it failed to apply its mind, had committed an error of law in discharging the accused leading to the miscarriage of justice. In that context, this Court held that the order of the Sessions Judge operated as a bar to entertain the application under Section 482 of the Code. In view of the fact that the order of the High Court had led to the miscarriage of justice, this Court had set aside the order of the High Court and confirmed that of the Magistrate.

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13. The ratio of Simrikhia case [(1990) 2 SCC 437: 1990 SCC (Cri) 327] has no application to the facts in

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this case. Therein, on a private complaint filed under Sections 452 and 323 IPC the Judicial Magistrate, First Class had taken cognizance of the offence. He transferred the case for inquiry under Section 202 of the Code to the Second-Class Magistrate who after examining the witnesses issued a process to the accused. The High Court exercising the power under Section 482 dismissed the revision. But subsequently, on an application filed under Section 482 of the Code, the High Court corrected it. The question was whether the High Court was right in reviewing its order. In that factual backdrop, this Court held that the High Court could not exercise inherent power for the second time. The ratio therein, as stated above, has no application to the facts in this case.

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14. In view of the above discussion, we hold that though the revision before the High Court under sub-section (1) of Section 397 is prohibited by sub-section (3) thereof, inherent power of the High Court is still available under Section 482 of the Code and as it is paramount power of continuous superintendence of the High Court under Section 483, the High Court is justified in interfering with the order leading to miscarriage of justice and in setting aside the order of the courts below. It remitted the case to the Magistrate for a decision on merits after consideration of the evidence. We make it clear that we have not gone into the merits of the case. Since the High Court has left the matter to be considered by the Magistrate, it would be inappropriate at this stage to go into that question. We have only considered the issue of power and jurisdiction of the High Court in the context of the revisional power under Section 397(1) read with Section 397(3) and the inherent powers. We do not find any justification warranting interference in the appeal.”

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This position was reiterated in Rajinder

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Prasad v. Bashir, (2001) 8 SCC 522 , wherein it was held:

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“…though the power of the High Court under Section 482 of the Code is very wide, yet the same

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must be exercised sparingly and cautiously, particularly in a case where the petitioner is shown to have already invoked the revisional jurisdiction under Section 397 of the Code. Only in cases where the High Court finds that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order was not correct, the High Court may, in its discretion, prevent the abuse of the process or miscarriage of justice by exercise of jurisdiction under Section 482 of the Code. It was further held, “Ordinarily, when revision has been barred by Section 397(3) of the Code, a person - accused/complainant - cannot be allowed to take recourse to the revision to the High Court under Section 397(1) or inherent powers of the High Court under Section 482 of the Code since it may amount to circumvention of provisions of Section 397(3) or Section 397(2) of the Code.”

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A similar view was taken in Kailash Verma v. Punjab State Civil Supplies Corporation, (2005) 2 SCC 571 , and it was held:—

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“5. It may also be noticed that this Court in Rajathi v. C. Ganesan [(1999) 6 SCC 326: 1999 SCC (Cri) 1118 ] said that the power under Section 482 of the Criminal Procedure Code has to be exercised sparingly and such power shall not be utilised as a substitute for second revision. Ordinarily, when a revision has been barred under Section 397(3) of the Code, the complainant or the accused cannot be allowed to take recourse to revision before the High Court under Section 397(1) of the Criminal Procedure Code as it is prohibited under Section 397(3) thereof. However, the High Court can entertain a petition under Section 482 of

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the Criminal Procedure Code when there is a serious miscarriage of justice and abuse of the process of the court or when mandatory provisions of the law are not complied with and when the High Court feels that the inherent jurisdiction is to be exercised to correct the mistake committed by the revisional court.”

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This position was reiterated in Shakuntala Devi v. Chamru Mahto , (2009) 3 SCC 310: (2009) 2 SCC (Cri) 8: 2009 SCC OnLine SC 292 , wherein it was observed:-

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“24. It is well settled that the object of the introduction of sub-section (3) in Section 397 was to prevent a second revision so as to avoid frivolous litigation, but, at the same time, the doors to the High Court to a litigant who had lost before the Sessions Judge were not completely closed and in special cases, the bar under Section 397(3) could be lifted. In other words, the power of the High Court to entertain a petition under Section 482, was not subject to the prohibition under subsection (3) of Section 397 of the Code and was capable of being invoked in appropriate cases. Mr Sanyal's contention that there was a complete bar under Section 397(3) of the Code debarring the High Court from entertaining an application under Section 482 thereof does not, therefore, commend itself to us.

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25. On the factual aspect, the Magistrate came to a finding that the appellants were entitled to possession of the disputed plot. It is true that while making such declaration under Section 145(4) of the Code, the Magistrate could have also directed that the appellants be put in possession of the same.

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26. The question which is now required to be considered is whether the High Court was right in quashing the order passed by the Magistrate, which was confirmed by the Sessions Judge, on the ground that the application made by the appellants under Section 145(6) of the Code was barred firstly by limitation under Article 137 of

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the Limitation Act and also by virtue of Section 6 of the Specific Relief Act, 1963.

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Delhi High Court also took a similar view

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in Surender Kumar Jain v. State, ILR (2012) 3 Del 99 and

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held: —

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“5. The issue regarding the filing of a petition before the High Court after having availed the first revision petition before the Court of Sessions has come up before the Supreme Court and this Court repeatedly. While laying that section 397(3) Cr. P.C. laid the statutory bar of the second revision petition, the courts have held that the High Court did enjoy inherent power under section 82 (sic) Cr. P.C. as well to entertain petitions even in those cases. But, that power was to be exercised sparingly and with great caution, particularly, when the person approaching the High Court has already availed remedy of first revision in the Sessions Court. This was not that in every case the person aggrieved of the order of the first revision court would have the right to be heard by the High Court to assail the same order which was the subject matter of the revision before Sessions Court. It was all to depend not only on the facts and circumstances of each case but as to whether the impugned order bring about a situation which is an abuse of the process of the court, there was a serious miscarriage of justice or the mandatory provisions of law were not complied with. The power could also be exercised by this Court if there was an apparent mistake committed by the revisional court. Reference in this regard can be made to the judgments of the Supreme Court i n Madhu Limave v. State of Maharashtra (1977) 4 SCC 551, State of Orissa v. Ram Chander Aggarwal, (1979) 2 SCC 305: AIR 1979 SC 87, Rai Kapoor v. State (Delhi

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Administration) 1980 Cri LJ 202, Krishnan v. Krishnaveni and Kailash Verma v. Punjab State Civil Supplies Corporation (2005) 2 SCC 571 .”

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Therefore, the Court cannot exercise the power of revision by taking recourse to Section 482. However, the Court has power under Section 482 to correct any serious miscarriage of justice and abuse of the process of the Court or violation of the mandatory provision of law. Hence, the Court has to determine whether any miscarriage of justice has taken place or there is a violation of the mandatory provision of law.

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Learned SDM mentioned in his order that after receiving the reply from the respondent, he inspected the spot during the inspection of Bassi Bazaar on 23.01.2020 and observed certain defects. He concluded that the vermicompost pit resulted in a nuisance to the people of the locality and passed an order based on his observations. It was laid down by the Madras High Court in Executive Officer Sri Rajagopalaswami Temple, Pudupalayam, Cuddalore vs. A. Satchidanandam: MANU/TN/0498/1982 that the Magistrate cannot pass an order based on the spot inspection and if does so, the High Court can interfere with the order under Section 482 of CrPC. It was observed:

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“4. The second irregularity is that the Magistrate has not questioned the petitioner herein (respondent before him) when admittedly the Executive Officer of the temple appeared before him. Further, no evidence was recorded as contemplated under S. 133, Crl. P.C. Again, he seems to have inspected the property locally without notice to the parties and no notes of inspection are found in the records . All these are irregularities and an order passed on such irregularities will have to be set aside.

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It was contended on behalf of the respondent herein that this is a second revision I petition which does not lie and that it is not maintainable. But, then, this is a petition under S. 482 Crl. P.C. invoking the inherent jurisdiction and powers of the Court. For all these reasons, the order passed by the lower Courts is vitiated and is liable to be set aside. Accordingly, all the proceedings except the petition filed by the respondent herein under S. 133, Crl. P.C. is set aside, and the matter is remanded back to the Executive Magistrate for initiation of proceedings, if necessary, according to S. 133, Crl. P.C. and disposal of the same strictly in accordance with law.” (Emphasis supplied)

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Kerala High Court held in Mani Mathai Vs. Uthuppu 1985 STPL 2643 Kerala that the Magistrate cannot conduct the local inspection to collect the evidence to dispose of the matter pending before him. He can conduct the local inspection to appreciate the evidence led before him and cannot pass an order based on the impression gathered during the local inspection. It was observed:

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“12. The only basis on which the Magistrate proceeded to decide the matter finally is the alleged authorisation or consent from the parties. It is true that there is a record to show that both sides agreed to a local inspection and for having the matter disposed of accordingly. But the consent of parties will not invest the Magistrate with a jurisdiction which he does not otherwise have. Even from the impugned order, it is seen that after local inspection, the petitioners before this Court expressed their objection to having the matter disposed of in the way in which the Magistrate proposed to have the decision. But the Magistrate was very much particular to enforce the consent of parties. He has not only dispensed with the inquiry under Section 137 (l) relying on the alleged consent given by the parties, but even dispensed with an inquiry under Section 138 in order to pass a final order under Section 138 (2). The impression gathered by him on the basis of the local inspection was taken as a substitute for the inquiry under Sections 137 (1) and 138. This is evidently illegal .

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The object of local inspection is not the collection of evidence for disposal of proceedings pending before courts if that be the object, it is enough for the disposal of matters pending before courts that Presiding Officers conduct local inspection every day. The object of local inspection is very much limited. Usually, local inspection is resorted to only sparingly and in extreme cases. Even when the ideal inspection is conducted the material collected on the basis of local inspection will not and cannot be used as evidence in the case. They could only be used for the purpose of appreciating the evidence tendered by the parties. But in this particular case, local inspection was conducted for the purpose of deciding the disputed question whether the pathway in question was a public pathway and whether it was obstructed or not. The action of the Magistrate is highly irregular in this report. In the decision in Ambi v. State of Kerala , it was held: The conditional order cannot be made absolute without the party

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(complainant) being called upon to substantiate the allegation, which necessitated the passing of the conditional order, by producing legal evidence. The Court is not expected to base the decision solely upon the information gathered from a personal inspection of the locality which can. Merely aid the court in appreciating the evidence before it. That position has further been emphasised in the decision in Narayana Shetty and others v. Varkey Antony , wherein it was found: The Court is not expected to base the decision solely upon the information gathered from a personal inspection of the locality which can merely aid the court in appreciating the evidence before it. The Section can be invoked only where there has been an invasion of public rights. TI It follows that the action of the Magistrate is wrong for more than one reason. In the first place, the impugned order was passed as if it were a final order and before passing such an order, he has not decided whether there is reliable evidence in support of the denial of the existence of the public right or not. Secondly, he decided the question without allowing the counter-petitioners before him to let in evidence establishing the genuineness of the denial of the public right. The information gathered by him during the local inspection was wrongly used by him as a substitute for legal evidence. Whenever local inspection is conducted, it will have to be with notice to the parties. The Officer conducting the local inspection will have to prepare a memorandum in which the details noted at the local inspection will have to be recorded. The parties are entitled to get copies of that memorandum in order to understand whether the facts were properly understood and collected by the officer. None of these formalities were complied with in this case. Therefore, the order under revision must necessarily go. It is also said that after issuing the final order, the Magistrate has also issued notice to the revision petitioners through the Sub-Inspector of Police. Koothattukulam directed them to comply with the order and warning them of consequences envisaged under the provisions of the Indian Penal Code. Anyhow, when

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the final order is set aside, the notice pursuant to that order also must go.

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Allahabad High Court also held in Satya Prakash

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Vs. State of Uttar Pradesh 1983 STPL 1361 Allahabad

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that the Magistrate should not become a witness by visiting the spot. He should record the evidence and if necessary, he can visit the spot to appreciate the evidence led before him. It was observed:

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“12. Thus, in making local inspection a Magistrate should not do anything which would reduce him to the position of a witness. It is really meant for the purpose of appreciating the evidence in the case and can be utilized for the purpose of drawing conclusions from the evidence but it cannot be treated as evidence itself nor can a judgment be founded on it . See Kotappa and others v. Serappa Sakalathi Rangappa and another, A.I.R. 1955 Mysore 131 . In short, the test to be applied is whether the evidence adduced by the parties has entered into the decision making or the judgment proceeds from non-consideration of the evidence and its real foundation is knowledge derived from local inspection. The judgment should indicate that the evidence on record was an element in its formulation and it was only buttressed by the observations of the Presiding Officer during the site inspection. See Ugam Singh and another v. Kesrimal and others, A.I.R. 1971 S.C. 2540 . In the instant case, the plaintiff filed an application under section 133 Criminal Procedure Code, on 1.6.1978. The City Magistrate ordered a preliminary inquiry by way of local investigation to be made by the Tahsildar, Etawah who submitted his report dated 25.7.1978 fully supporting the allegations made in the complaint. Thereafter the contesting parties filed their written statements and evidence was adduced in the case. The

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complainant besides examining himself also examined an engineer who being an expert witness stated that the building in question was in a dangerous condition and was likely to fall. Arguments of the parties were heard and on 5.8.1979 the learned City Magistrate made a local inspection after giving notice to both parties and passed the order dated 13.8.1979 directing demolition of the building. The said order elaborately discusses the evidence adduced by the parties and it is quite clear from the sequence of events that the decision rendered by the City Magistrate is based on appreciation of evidence and not on information that appears of better evaluation of evidence. It does not, therefore, vitiate the impugned order passed under section 133 Criminal Procedure Code nor has the procedure followed by the city Magistrate in any manner prejudiced the present applicant who was the contesting opposite party in the court below.”

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It was laid down by this Court in Kashmir Singh

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Vs. State of H.P. 1992 (2) Shimla Law cases 163 that an SDM could not have passed any order based on the spot inspection conducted by him. It was observed:

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“4. It is well settled that section 133, Cr. P. C. applies only to existing and not to potential nuisance, i.e. to what may become a nuisance in the future nor does this section apply when the nuisance has ceased Also the power under this section being summary, it should be sparingly used and its provisions should not be so worked as to become itself a nuisance to the community at large Chapter X of the Code of Criminal Procedure pertains to "Maintenance of Public Order and Tranquillity" and its Part-B commencement from section 133 onwards deals with "Public Nuisances" Section 133, as observed above, gives the power to the Magistrate to make a conditional order. Section 134 deals with the service or notification of said order. Section 135 envisages that a person to whom the order is addressed

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either should obey the order so passed or he should show cause against it. The subsequent section 136 lays down the consequence of his failing to do so. Sections 137 and 138 lay down the procedure where the existence of a public right is denied and where he appears to show cause to the notice issued to him under section 133, referred to above. Section 139 gives powers to the Magistrate to direct local inspection and examination of an expert.

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In the instant case, the lower Court's record shows that the reply was filed by the petitioner to the showcause notice where he denied the existence of a public right. In the circumstances sections 137 and 138 were attracted. Now closely reading the two sections pertaining to the procedure referred to in sections 137 and 3 38 respectively, when a person Is served with an order under section 137 appears, it becomes obligatory on the Magistrate to, first, ask him (defaulter) whether he denies the existence of a public right in question and in case he does so it becomes then obligatory on the said Magistrate to conduct an enquiry into the matter under section 137 before holding an enquiry referred to in under section 138, secondly, at this enquiry, the person (defaulter) is required to produce his evidence in support of his denial and in case such evidence is found to be reliable, the jurisdiction of the Magistrate is ousted and proceedings are then required to be stayed until the matter has been decided by a Civil Court. Lastly, if the person does not raise any question of public right or if (when raised) there is no reliable evidence in support of such right, then such Magistrate shall proceed to enquire under section 138 and pass final order- The above said mandatory provisions of law show that it is illegal to pass final order merely upon an enquiry under section 137 without thereafter proceeding under section 138. In other words, the procedure detailed under section 137 is imperative. In the instant case admittedly no such procedure under section 137 and thereafter enquiry under section 138 which were mandatory have been followed by the respondents Thus the ultimate

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order passed on November 13, 1991, is illegal and the same is liable to be quashed.” (Emphasis supplied)

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Similarly, the Kerala High Court also held in

¶90

Diamond Aggregates, A. Partnership Vs. State of Kerala

¶91

2007 STPL 12501 Kerala that the SDM is not competent to pass an order based on the local inspection conducted by him. He has to follow the procedure laid down under Section 138 of Cr.P.C. and record the evidence. It was observed:

¶92

“5. The only other question which survives for consideration is as to whether the Annexure-3 order passed by the Sub Divisional Magistrate can be sustained. As noticed earlier, consequent on the revision petitioner who was the B party entering appearance and filing objection to the preliminary order, the Sub Divisional Magistrate could not thereafter straight away proceed to pass a final order under Section 138 Cr.P.C. by merely placing reliance on the final report of the Tahsildar and the impressions gathered by the Sub Divisional Magistrate himself during the local inspection conducted by him on 17.12.2005 . An Executive Magistrate, who makes a conditional order absolute under Section 138(2) Cr.P.C., cannot do so without taking evidence of the party at whose instance he passed the conditional order Velayudhan v. Kesavan Nair,1968 KerLT 889 . If the person against whom the show cause summons has been served files his objection, the Executive Magistrate cannot straight away dispose of the case under Section 138 Cr.P.C. But he will have to take evidence and satisfy himself as to whether the conditional order passed by him is reasonable and proper. This is the legal position even in a case where the person concerned does not pursue his objections. It is for the complainant, who moved the Magistrate to lead evidence on his side. He cannot leave the Magistrate to base his order on the materials placed

¶93

¶94

before him when the preliminary order was passed. Report of the Tahsildar, police papers or evidence adduced while passing the preliminary order under Section 133 Cr.P.C. are not substitutes for taking evidence under Section 137 Cr.P.C. Bhaskaran Nair v. Samuel,1974 KerLT 591 . Taking of evidence is a condition precedent to the making of the conditional order absolute Narayana Shetty and Ors. v. Varkey Antony,1971 MhLJ(Crl) 293. Similarly, the impressions gathered by the Sub Divisional Magistrate during the local inspection conducted by him cannot also form the basis for passing a final order. Annexure-3 order also cannot, therefore, be sustained and is accordingly set aside. It shall be open to the Sub Divisional Magistrate to continue the proceedings in case a motion is made at the instance of the A party on whom the burden to substantiate their allegations lay. It goes without saying that even in the event of the Sub Divisional Magistrate dropping the proceedings initiated under Section 133 Cr.P.C. the revision petitioner will be entitled to continue the blasting operations only if the licence in his favour has been renewed and also in case, he complies with the safeguards fixed by the Pollution Control Board and other statutory authorities.” (Emphasis supplied)

¶95

Therefore, it is apparent that the SDM is not competent to visit the spot and pass an order on the basis of his spot inspection. In the present case, the learned SDM passed the order based on the inspection conducted by him and he violated the mandatory provisions laid down under the Act; thus, this Court is justified in interfering with those orders passed by the learned SDM in the exercise of its inherent jurisdiction.

¶96

¶97

It was submitted on behalf of the complainant that the learned SDM erred in initiating proceedings under Section 133 of Cr.P.C., he was simply to execute the order passed by the Panchayat which was sent to him. This submission is not acceptable. Section 12 of the H.P. Panchayati Raj Act empowers the Gram Panchayat to remove the nuisance. Section 15 (2) of the Act provides that if a person fails to remove the nuisance, the Gram Panchayat may cause it to be removed and recover the costs of removing it from the person concerned. Section 15 empowers the Gram Panchayat to impose the penalty for disobedience of the order passed under section 12 of the Act. No provision was brought to the notice of the Court which empowers the Gram Panchayat to refer the matter to the learned SDM and the learned SDM to execute the orders passed by Gram Panchayat.

¶98

No other point was urged.

¶99

In view of the above, the orders passed by the learned SDM and learned Additional Sessions Judge confirming his order are not sustainable. Hence, those are set aside. The matter is remanded to learned SDM for proceeding further

¶100

¶101

as per law. The parties through their respective counsel are directed to appear before learned SDM on 29^th July, 2024.

¶102

16^th July 2024 (Rakesh Kainthla) (Manish) Judge

Amro Devi v. State of Hp and Ors.

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Amro Devi v. State of Hp and Ors.

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