Madan Lal & Anr vs State Of Himachal Pradesh & Anr on 6 May, 2025

Himachal Pradesh High Court

Madan Lal & Anr vs State Of Himachal Pradesh & Anr on 6 May, 2025

( 2025:HHC:12648 )

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. MMO No.366 of 2019
Reserved on: 25.03.2025
Date of Decision: 06.05.2025

Madan Lal & Anr. …Petitioners
Versus

State of Himachal Pradesh & Anr. …Respondents

Coram
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No.

For the petitioners : Mr. Divya Raj Singh, Advocate.

For the Respondents : Mr. Ajit Sharma, Deputy Advocate
General, for respondent No.1 -State.

Mr. Sanjeev Kumar Suri, Advocate,
for respondent No.2.

Rakesh Kainthla, Judge

The petitioners have filed the present petition against

the order dated 11.03.2019 passed by learned Additional Sessions

Judge -II, Una, District- Una (learned Revisional Court) vide

which the revision filed by the petitioners (respondents before

the learned Trial Court) against the order dated 19.03.2018,

passed by learned SDM, Una (H.P.) (learned Trial Court) in

1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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proceedings under Section 133 of Criminal Procedure Code (“in

short Cr.P.C“) was dismissed. (Parties 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 Ram Lal (complainant) filed a complaint under

Section 133 Cr.P.C. for removing the public nuisance, i.e. the

blockage of a public street. It was asserted that the complainant

and the respondents are permanent residents of the village Abada

Barana. The complainant has his residential abadi in village

adjoining the public street. The Gram Panchayat constructed a

pucca street and pucca drain/Nali to discharge the dirty and rainy

water of the residents of the locality. The respondent, Madan Lal,

blocked the flow of water by putting stones/bricks, etc. The water

flows into the Courtyard of the complainant. The respondent,

Naresh Kumar, placed a big underground pipe to divert the public

street water/drain water towards the house of the complainant.

The complainant requested the respondents to remove the public

nuisance, but in vain. Hence, it was prayed that the necessary

action be taken in the matter.

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3. The complaint was forwarded to the Station House

Officer (SHO), Una, for conducting an inquiry. SHO submitted a

report asserting that Madan Lal & Naresh Kumar, etc., had

stopped the flow of water by putting bricks/stones, etc. The

Members of the Gram Panchayat had also requested the

respondents to remove the obstructions, but in vain.

4. Learned SDM, Una, issued notice to the respondents.

The respondents appeared and filed a reply denying the contents

of the complaint. It was asserted that the parties are inimical to

each other. The level of the residential buildings of the

respondents is much higher than the level of the drains. The

water was flowing naturally, and no stones/bricks, etc., were put

in the drain. The complainant himself raised the wall over the

drain and blocked the flow of natural water. Therefore, it was

prayed that the complaint be dismissed.

5. Learned Trial Court recorded the statements of the

parties and visited the spot. A direction was issued to the

respondents to remove the blockage from the drain and the

underground water pipe for the smooth flow of the natural water.
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6. The respondents preferred a revision against the order

which was decided by the learned Additional Sessions Judge-II,

Una (learned Revisional Court). The learned Revisional Court held

that no opportunity was given to the respondents to lead the

evidence. Learned SDM proceeded to the spot and straightaway

passed an order directing the removal of the obstructions. It was

not permissible. Hence, the matter was remanded to the learned

Trial Court to record the evidence of the respondents.

7. Learned Trial Court recorded the statements of the

respondents’ witnesses and held that the statements of the

complainant’s witnesses, spot inspection report and spot inquiry

revealed that a pucca drain was constructed by the Gram

Panchayat for the flow of rainy and dirty water. Respondent,

Madan Lal, placed an underground pipe to discharge the water.

He blocked the drain and created a nuisance, causing danger to

the residents and their abadies. Hence, he directed the

respondents to remove the obstructions from the drain.

8. Being aggrieved by the order passed by the learned

Trial Court, the respondents filed a revision which was decided by

the learned Additional Sessions Judge-II, Una (learned Revisional
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Court). Learned Revisional Court held that the respondents had

blocked the flow of water. Respondents did not step into the

witness box to prove that they had not blocked the drain. There

was no infirmity in the order passed by the learned Trial Court.

Hence, the revision was dismissed.

9. Being aggrieved by the order passed by the learned

Revisional Court, the respondents have filed the present revision

asserting that the learned Courts below erred in passing the order

for the removal of the public nuisance. The complaint before the

learned SDM was not maintainable. There was no obstruction or

nuisance in the public place. Complainant – Ram Pal admitted on

oath that he had not mentioned any Khasra number in the

complaint, and he had not annexed any Revenue Record to show

the location of the land. Darshan Lal admitted that the water of

the house of Ram Lal was passing through the pucca street, which

was quite old. Sumit Kumar also made a similar statement.

Therefore, it was prayed that the present petition be allowed and

the order passed by the learned Courts below be set aside.

10. I have heard Mr. Divya Raj Singh, learned counsel for

the petitioners/original respondents, Mr. Ajit Sharma, learned
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Deputy Advocate General for respondent No.1/State and Mr.

Sanjeev Kumar Suri, learned counsel for respondent No.2/original

complainant.

11. Mr. Divya Raj Singh, learned counsel for the

petitioners/original respondents, submitted that the learned Trial

Court did not have the jurisdiction to hear and entertain the

present complaint. Learned Trial Court did not pass any

conditional order in the absence of which the jurisdiction could

not have been exercised. There was no obstruction in a public

place. Public nuisance, as per the complaint, was restricted to the

house of the complainant. Therefore, he prayed that the present

petition be allowed and the orders passed by the learned Courts

below be set aside. He relied upon the judgment of Kashetar Pal

Singh v. Harpal Singh, 2016 SCC OnLine HP 2935 in support of his

submission.

12. Mr. Ajit Sharma, learned Deputy Advocate General for

respondent No.1-State, submitted that the drain was constructed

by the Gram Panchayat, hence, it falls within the definition of a

public place. It was duly proved by the statements of the

witnesses and the report of the learned SDM that obstruction was
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caused to the public drain. Therefore, the learned Trial Court had

rightly ordered its removal. Learned Revisional Court had rightly

dismissed the revision. This Court should not interfere with the

concurrent findings of fact recorded by the learned Courts below.

Therefore, he prayed that the present petition be dismissed.

13. Mr. Sanjeev Kumar Suri, learned counsel for

respondent No.2/original complainant, submitted that the

petitioners/original respondents had filed a revision before the

learned Revisional Court, and the second revision is not

maintainable. This Court can interfere with the orders passed by

the learned Courts below if there is some jurisdictional error

which has not been demonstrated in the present case. Hence, he

prayed that the present petition be dismissed.

14. I have given considerable thought to the submissions

made at the bar and have gone through the records carefully.

15. It is undisputed that the petitioners had filed a

revision before the learned Revisional Court, which was

dismissed by the learned Revisional Court. It was laid down by the

Hon’ble Supreme Court in Krishnan Vs. In Krishnaveni (1997) 4 SCC

241, the High Court can intervene under Section 482 of CrPC
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(corresponding to Section 528 of BNSS) when there is a grave

miscarriage of justice or abuse of the process of the Court. It was

observed:

“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 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 the 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 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, cognisance of the commission of the
offence by the appellant was taken to 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.

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 the Rajan Kumar Machananda case [1990 Supp SCC 132:

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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 provisions
contained in Section 397(3), the revision is not
maintainable. In the Dharampal case [(1993) 1 SCC 435: 1993
SCC (Cri) 333], which 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
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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.

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

Therein, on a private complaint filed under Sections 452
and 323 IPC, the Judicial Magistrate, First Class had taken
cognisance 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.

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 the 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
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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.”

16. This position was reiterated in Rajinder

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

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

17. A similar view was taken in Kailash Verma v. Punjab

State Civil Supplies Corporation, (2005) 2 SCC 571, and it was held:

“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
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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 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.”

18. 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: –

“24. It is well settled that the object of the introduction of
sub-section (3) in Section 397 was to prevent a second
revision 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 sub-section (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.

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 a
declaration under Section 145(4) of the Code, the
Magistrate could have also directed that the appellants be
put in possession of the same.

26. The question which is now required to be considered is
whether the High Court was right in quashing the order
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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 the Limitation Act
and also by virtue of Section 6 of the Specific Relief Act,
1963.

19. Delhi High Court also took a similar view in Surender

Kumar Jain v. State, ILR (2012) 3 Del 99 and held: —

“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 by 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 the Sessions Court. It all depends not only
on the facts and circumstances of each case but as on
whether the impugned order brought about a situation that
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 in 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 Administration) 1980 Cri LJ
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202, Krishnan v. Krishnaveni and Kailash Verma v. Punjab
State Civil Supplies Corporation (2005) 2 SCC 571.”

20. It is apparent from the judgments that the High Court

has a limited jurisdiction and it can only rectify a serious

miscarriage of justice or a breach of a mandatory provision of law

while exercising its jurisdiction under Section 482 of Cr.P.C.

21. 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
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) …

(b) …..

(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 or
tree, within time to be fixed in the order-

(i) To remove such obstruction or nuisance; or

(ii) ……

(iii)…

(iv)…

(v) …

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(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.”

22. It is apparent from the bare perusal of this Section that

when an information is received by the learned 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 whom

an order is addressed can perform the act directed in the order, or

he may appear and show cause against it. 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) provides that where the

Magistrate is satisfied that the order either originally made or

subject to such modification as he considers necessary is

reasonable, the order shall be made absolute without

modification or with such modification.

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23. 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 it, 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 puts the other party on

notice of the ultimate order and forms part of natural justice.

24. In the present case, the learned SDM passed an order

on 08.07.2013 as under:-

“This Kalandra has been furnished by SHO under Section
107, 150 and 133 Cr.P.C. It is in connection with the blocking
of the pubic drain, so it is triable under Section 133 Cr. P.C.
and not under Section 107 Cr. P.C. Issue a conditional order
under Section 133 Cr. P.C. and case to come up for reply on
02.08.2013.”

25. It is apparent from the order that the learned Trial

Court did not specify the nature of the order that the respondents
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were to comply with on their own or would be enforced against

them.

26. A similar situation arose before the Allahabad High

Court in Mangal and others v. State of U.P. and others, 1977 Cri. L. J.

1036, wherein learned SDM had passed an order “issue a

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 a 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 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 up. 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
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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 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 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 the notice prepared
on 11th May 1976, it would still not comply with the
remaining requirements of S. 133 of the Code of Cr.
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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 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.

27. It was laid down by the 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-
Divisional Magistrate on 13/1/1988 is unsustainable
and is vitiated. The High Court fell into 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
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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,
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-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 were 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.

(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.

22

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24. In the present case also, there is no preliminary
conditional order, calling upon the persons to show cause
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
down by the Supreme Court, it has necessarily to be
observed that the impugned order is not valid in law.”

28. Therefore, the proceedings in the present case would

not be sustainable in the absence of the conditional order.

29. It was asserted in the complaint that the water was

flowing to the complainant’s house. A similar situation arose in

Kashetar Pal Singh (supra) wherein a complaint was made that the

respondent had blocked the flow of water, causing danger to the

complainant’s house. It was held by this Court that it was a

private dispute and no public nuisance involved was in it. It was

observed:-

“14. During the course of arguments, learned counsel for
the petitioner neither could point out as to what was the
jurisdictional error committed by the learned Court below
while deciding the revision petition or what was the
perversity with the findings arrived at by learned
Revisional Court and by the Court of learned Sub Divisional
Magistrate to the effect that the issue raised in Kalandra
was in fact a private dispute inter se the present petitioner
and respondent No. 1 and there was no element of public
nuisance involved in the same. In fact, it is evident from a
perusal of the judgment passed by learned Revisional Court
as well as other material placed on record by the parties
that the issue which was raised by the petitioner by way of
filing a complaint before Gram Panchayat was in fact a
23

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private dispute existing between him and respondent No. 1
qua which he had already instituted a civil suit in the Court
of competent jurisdiction. Therefore, it cannot be said that
the Revisional Court erred while coming to the conclusion
that the findings returned by the learned Sub Divisional
Magistrate that the issue raised in the Kalandra was not a
matter of public interest, was the correct decision.”

30. In the present case, it was specifically mentioned in

the report submitted by Tehsildar that the drain was constructed

for discharging the water of the house of the complainant and

Kamlesh. It was admitted by the complainant in his cross-

examination that the civil suit was pending between the parties.

Hence, the proceedings under Section 133 of CrPC were not

justified.

31. It was held in M.P. Parameswaran Nair v. P. Madhavan

Nair, 1975 SCC OnLine Ker 79: 1975 Cri LJ 1306: 1975 KLT 278 that

the obstruction to the flow of water by raising the level of the

house by the respondents is not a public nuisance. It was

observed: –

“5. It is important to bear in mind that for this provision to
apply, the obstruction or nuisance to be removed should be
on the way. The order of the Magistrate shows that he has
taken the raising of the level of the property of the revision
petitioner and the putting up of a compound wall by him
on his property as the obstruction. They are on his own
property and not on the Panchayat road. Therefore, plainly
Section 133(1) is not attracted.

24

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xxxxxxxx

7. In Summer Singh v. Sanitary Inspector, AIR 1955 Cal 554 :

(1955 Cri LJ 1355), the petitioner erected khatals on his
property on the side of a road in the midst of an inhabited
locality. Filth accumulated at the place. Members of the
public, including users of the road, suffered as a result of
the nuisance. The Magistrate, who was moved in the
matter, directed the petitioner to remove the nuisance. The
Calcutta High Court set aside that order in revision after
holding that before the nuisance or obstruction could be
ordered to be removed it had to be established that the
nuisance or obstruction related to one in a way, river or
channel which was or may be lawfully used by the public or
in any public place and that as the khatals constructed by
the petitioner were on private land the provisions of
Section 133 did not apply.

8. In Shri Ram v. Emperor, AIR 1935 All 926: (1935 Cri LJ
1140), the applicant was building a latrine on his land, and
the authorities feared that the latrine, when completed,
would amount to a nuisance. The Allahabad High Court
held that Section 133 did not apply to that case as the
latrine was being constructed on the applicant’s land, a
private place. In Sadasheo Chintaman v. Chintaman
Khushalrao, AIR 1945 Nag 226: (47 Cri LJ 217), the
correctness of an order passed by a Magistrate acting
under Section 133 and directing the applicant to remove an
embankment put up by him on his property was challenged
in revision. In that case, the applicant’s land, field No. 19, It
was on the southern side of the road, which lay east to
west. On the other side of the road towards the north lay
fields Nos. 24 and 25. The ground sloped from north to
south. Hence, water ran off from the northern lands
through the road to the southern lands. The applicant
erected an embankment at the edge of field No. 10 at the
point where water entered his land from the road. This
resulted in the formation of a little lake on the road and
rendering the road impassable. The Nagpur High Court
25

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after observing that the embankment in that case was on
private land, that the obstruction complained of was on the
road, that there was no doubt that in cases of obstruction
the obstruction had to be on the public way and that
Section 133 could not be applied if the obstruction was on
private land, held that the Magistrate was right in the
circumstances in acting under Section 133 and directing the
applicant to remove the embankment. The reason given
was that the collection of water on the road was caused by
the applicant and that it was immaterial how he caused it.

With great respect, the question as to how the obstruction
was caused is not immaterial. I consider it really important
to ascertain whether the obstruction caused was unlawful.
If it was caused as a result of the exercise of a legal right, or
in other words, as a result of a lawful act, the obstruction
caused cannot be characterised as unlawful. Erection of an
embankment on one’s land is a right involved in the use of
land. It is a concrete right following from ownership of
property. The right of use of land can be restricted only by
law. There is no law prohibiting the erection of an
embankment on one’s land. Hence, if the obstruction on
the road was the result of a lawful act on the part of the
applicant on his land, the obstruction caused on the road
cannot be characterised as unlawful so as to attract Section

133. The collection of water on a road can be avoided by the
authorities in charge of the maintenance of the road by
providing drains on the sides of the road. The
consequences of failure to perform duty or negligence on
their part cannot make the precautionary steps taken by
owners of private lands on the sides of the road for
preventing water flowing from the road to their lands, acts
contrary to law or unlawful acts. Hence, the obstruction on
the road, even if it is deemed to be the result of an act of the
owner of property on his land, cannot be considered an
unlawful obstruction on his part. I regret I am unable to
agree with the decision in (1946) 47 Cri LJ 217 (Nag).
26

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9. The provisions of Section 133 apply only to cases where
there is no doubt that the place where the alleged
obstruction is caused is a public thoroughfare and that the
obstruction caused is unlawful. The heart of this case really
turns on the question whether the collection of rainwater
on the road is an unlawful obstruction made by the
Revision Petitioner. Courts have got to be realistic. The
revision petitioner had the right to raise the level of his
land and put up a compound wall on it, and prevent
rainwater from the road from entering his property.
Rainwater stagnates on the road because the authorities in
charge of maintaining the road have not provided drains
on the sides of the road. Instead of asking them to do what
is their clear duty, to ask the revision petitioner to
demolish the compound wall and to lower the level of his
land would be an unnecessary invasion of his indisputable
rights in property. The collection of rainwater on the road
is not on account of unlawful obstruction caused by the
revision petitioner. Section 133 of the Criminal Procedure
Code does not apply to such a case. I allow this revision
petition and quash the Magistrate’s order.”

32. The report submitted by the Tehsildar shows that the

respondent constructed a house, which caused the blockade of

the drain. The complainant admitted that he had not specified the

khasra number of the drain. No demarcation was obtained to

show that the drain was on common land. Therefore, the learned

Magistrate could not have ordered the removal of the obstruction,

and the order passed by the learned Trial Court can not be

sustained.

27

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33. Learned SDM proceeded under Section 133 Cr. P.C.

without passing a conditional order. The passing of the

conditional order gives jurisdiction to the learned SDM to proceed

further. He treated the private dispute as a public dispute. Hence,

he committed a jurisdictional error which can be rectified in the

proceedings under Section 482 of Cr.P.C.

34. In view of the above, the present petition is allowed,

the orders passed by the learned Courts below are ordered to be

set aside, and the complaint is dismissed. Records of the learned

Courts below be sent back forthwith along with copy of the

judgment.

(Rakesh Kainthla)
Judge
06th May, 2025
(Shamsh Tabrez)