Failure to pass a preliminary conditional order vitiates proceedings under Section 133 CrPC.

Opposite Party No. 2 alleged before the Sub-Divisional Magistrate (SDM), Hazaribagh, that the petitioner, proprietor of a medical clinic/nursing home, had obstructed a public way by constructing a boundary wall.

On the basis of a report submitted by the Additional Collector, the SDM initiated proceedings under Section 133 Cr.P.C. on 30 December 2016.

The petitioner filed a show-cause response, after which the SDM, by order dated 13 February 2017, directed the Circle Officer to measure the land and remove the alleged encroachment.

The petitioner contended that the land formed part of privately purchased and mutated property, on which a building had been constructed in 1987, and that the proceedings under Section 133 Cr.P.C. were impermissible in relation to private land.

His criminal revision was dismissed by the Sessions Judge, Hazaribagh, who relied upon the Circle Officer’s measurement report identifying a road between Plot Nos. 774 and 803.

The petitioner thereafter invoked Section 482 Cr.P.C. seeking quashing of both orders.

Whether the SDM could pass an order directing measurement and removal of an alleged encroachment under Section 133 Cr.P.C. without first issuing a valid conditional/preliminary order under Section 133(1) Cr.P.C.

Whether the proceedings were vitiated by failure to follow the statutory procedure applicable upon denial of the alleged public right and failure to conduct the matter in accordance with Sections 133, 138 and 139 Cr.P.C.

Whether the revisional court erred in upholding the SDM’s order despite the absence of a preliminary order identifying the land and establishing that the alleged obstruction concerned a public place or public way.

Section 133(1) Cr.P.C. empowers an Executive Magistrate, upon receiving a police report or other information and taking such evidence as considered necessary, to issue a conditional order requiring removal of an unlawful obstruction or nuisance from a public place or public way within a specified time, while giving the affected person an opportunity to appear and show cause.

A preliminary order under Section 133 is a sine qua non for initiating such proceedings, and non-compliance with the statutory procedure, including the procedure under Section 138 Cr.P.C., renders the order unsustainable, as held in C.A. Avarachan v. C.V. Sreenivasan, (1996) 7 SCC 71.

Section 139 Cr.P.C. permits the Magistrate to direct a local investigation, but such investigation cannot substitute the mandatory preliminary order and subsequent statutory procedure.

The Court also referred to Vasant Manga Nikumba v. Baburao Bhikanna Naidu, 1995 Supp (4) SCC 54, regarding the public purpose and judicious exercise of power under Section 133 Cr.P.C.

The Court found that the SDM had not passed any preliminary or conditional order under Section 133(1) Cr.P.C. specifying the alleged obstruction, fixing a time for its removal, or providing the statutory opportunity to show cause in the manner contemplated by the Code.

Instead, the SDM proceeded directly to order measurement of the land and removal of the alleged encroachment.

The order also failed to mention the relevant plot or khata numbers and did not determine whether the land was public or private.

Although the Circle Officer’s measurement report identified a passage between two plots, a local investigation under Section 139 could not cure the fundamental failure to comply with Section 133’s mandatory preliminary procedure.

The Sessions Judge therefore erred in overlooking this jurisdictional and procedural defect while dismissing the revision.

Consequently, the Court quashed and set aside both the SDM’s order in Case No. 13 of 2016 and the Sessions Judge’s revisional order dated 30 June 2017 in Criminal Revision No. 27 of 2017.

The criminal miscellaneous petition was allowed to that extent.