Procedural Compliance U/S 133 CrPC Mandatory; Well-Intentioned Orders Can't Survive Procedural Lapses: J&K&L High Court

The Jammu & Kashmir and Ladakh High Court has dismissed a petition challenging the remand of proceedings under Section 133 CrPC to the Sub Divisional Magistrate (SDM) for fresh consideration, holding that procedural compliance under Chapter X CrPC is mandatory and cannot be bypassed even for a "well-meaning" order.A bench of Justice Rahul Bharti held that if the provisions of Chapter X of the Code, which contain Section 133, read with subsequent sections, are not followed in the manner as prescribed, then a final order, even if well-meaning, cannot be allowed to stand.The case arose from a petition filed by 15 residents of the village of Agore, Tehsil Bhalwal, alleging that the wholesale storage and unloading of wheat fodder (Bhussa) by two shop owners were causing air pollution and public nuisance in the residential area. The petitioners had approached the SDM under Section 133 CrPC seeking restraint on the respondents' activities.Acting on the complaint, the SDM (Jammu North) initially passed a conditional order directing the respondents to stop unloading wheat fodder in the residential area. The respondents filed a reply stating they had been conducting this seasonal business for 40 years and had taken measures (tarpaulin covers) to prevent pollution. However, the SDM made the conditional order absolute vide order dated October 28, 2016.The respondents challenged this final order before the 1st Additional Sessions Judge, Jammu. The revisional court on November 21, 2019, set aside the SDM's final order, finding a "procedural lacuna" in the exercise of jurisdiction under Sections 133 and 137 CrPC. The Sessions Court remanded the matter back to the SDM to resume proceedings from the stage of show-cause.Aggrieved by the remand, the original complainants moved the High Court under Section 482 CrPC, seeking to salvage the SDM's order dated.Dismissing the petition, the High Court observed that the challenge to the Revisional Court's order was not "well meaning and worth indulgence". Justice Bharti noted that the Revisional Court had correctly apprised the SDM of the procedural compliances required. The Court also stated that the petitioners should have moved before the Sub-Divisional Magistrate to revive the proceedings, rather than rushing to the High Court.While upholding the order of November 21, 2019, the High Court modified the directions to the extent that the SDM shall also enquire and verify whether the shops and storage sheds were constructed on State land or proprietary land.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".The SDM was directed to issue fresh notices to all concerned. The Court significantly clarified that even if the petitioners do not appear, the SDM shall be bound to carry out the verification of State land encroachment and "take the matter to its logical end".Case-Title: Om Prakash & Ors. vs Bodh Raj & OrsCitation: 2026 LiveLaw (JKL) 32Click Here To Read/Download Order

Procedural Compliance U/S 133 CrPC Mandatory; Well-Intentioned Orders Can't Survive Procedural Lapses: J&K&L High Court

Aleem Syeed

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