Section 133 CrPC Due Process Mandatory: “Well-Meaning” Final Order Cannot Stand Procedural Lapses: J&K And Ladakh High Court
Safiya Malik
The High Court of Jammu & Kashmir and Ladakh Single Bench of Justice Rahul Bharti dismissed a petition challenging the remand of proceedings under Section 133 CrPC to the Sub Divisional Magistrate (SDM) for fresh consideration, holding that compliance with the mandatory procedure under Chapter X CrPC cannot be bypassed even if an earlier final order appeared “well-meaning.” The dispute arose from a complaint by 15 local residents alleging that the unloading and handling of wheat fodder at shops operated by private respondents was causing recurring air pollution and public nuisance in a village area. Upholding the remand, the Court also directed the SDM to revive the proceedings by issuing fresh notices and to verify whether the shops and storage shed stand on State land, and act accordingly.
The SDM passed a conditional order dated 17.08.2016 under Section 133 CrPC directing the respondents to stop loading/unloading in the residential area and to appear and show cause. The private respondents responded that they had carried on seasonal fodder trade for “forty (40) years” and had constructed a shed/hall and shops where trucks entered for unloading, with stock “covered by tarpal” to prevent escape causing pollution; they also referred to other fodder shops in nearby localities. The order records that their written response did not state whether the site was on ownership land or State land.
It noted the petitioners’ allegation regarding the site and activity: “the respondents No. 1 and 2 … had constructed shops by encroachment of State land in khasra No. 197 … wherefrom they are conducting their wholesale business of wheat fodder … by stacking wheat fodder in bulk … for which heavy load carriers make trips five to seven times … coming all along from Punjab … and then unloading supplies.” The Court also recorded: “The activity of loading and unloading of wheat fodder (Bhussa) … is said to be causing air pollution … thereby posing a public nuisance.”
Regarding the revisional court’s interference, the High Court recorded that the 1st Additional Sessions Judge found “a procedural lacuna … by reference to the provisions of Sections 133 and 137 of CrPC, 1973” and “set aside the impugned order … by remanding the matter back” for proceedings in accordance with law.
On the challenge before it, the High Court stated: “This Court is not convinced that the challenge … is well meaning and worth indulgence for the reason that if the provisions of Chapter (X) … is not followed … then a final order, even if well meaning, cannot be allowed to stand.” It added: “The petitioners should not have felt any concern to rush to this Court … and instead should have hurried themselves to the Sub Divisional Magistrate … to revive the proceedings and to take the same to logical end.”
The Court directed: "In case, the stocking of the fodder is taking place by reference to the shops and the storage shed which if found to be obtaining upon State land, then the authority concerned shall be well within its rights to get the encroachment removed from the State land, whosoever the said encroacher may be".
This Court finds no reason to allow this petition and therefore, dismisses it by upholding the order dated 21.11.2019 of the court of learned 1st Additional Sessions Judge, Jammu with a modification” that the SDM “shall also enquire and verify as to whether the referred site of the shops and the storage shed … obtains on the State land or on the proprietary land.”
“The Sub Divisional Magistrate (SDM), Jammu North is directed to issue fresh notices to all the concerned i.e., the petitioners and the respondents No. 1 and 2 for reviving of the proceedings.”
Advocates Representing the Parties
For the Petitioners: Mr. Anuj Dewan Raina, Advocate
For the Respondents: Mrs. Monika Kohli, Sr. AAG
Case Title: Om Parkash & Ors. v. Bodh Raj & Ors.
Neutral Citation: 2024:JKLHC-JMU:4260.
Case Number: CRM(M) No. 5/2020.
Bench: Justice Rahul Bharti.
