A Single Judge Bench of Justice Anil Kumar Choudhary was hearing a petition filed by Sushil Kumar Biswas challenging the order dated 04.09.2021 passed by the Additional Sessions Judge-VI, Deoghar, dismissing his criminal revision, as well as the order dated 13.05.2017 passed by the Sub-Divisional Magistrate, Madhupur under Section 133 CrPC.

The SDM had directed removal of an alleged obstruction in Thoka No. 220, Holding No. 127 and directed the concerned parties to remove the obstruction within 15 days, failing which they would be liable for prosecution under Section 188 IPC.

The proceedings had been initiated on an application filed by the opposite parties alleging obstruction of a way. On 11.09.2015, the SDM called for a report from the Circle Officer, Madhupur as to whether the land in question was public land. The Circle Officer submitted a report dated 03.10.2015 stating that there was no obstruction of any road.

The petitioner contended that despite this report, the SDM passed the order dated 13.05.2017 without first passing the conditional preliminary order required under Section 133 CrPC and without following the procedure under Sections 137 and 138 CrPC. Although the petitioner had filed a show-cause, he was not given an opportunity to adduce evidence.

The petitioner also alleged that the SDM relied upon an earlier Circle Officer report dated 17.03.2005 and an Anchal Amin report dated 24.08.2006, both of which predated the institution of the proceedings, while ignoring the Circle Officer's report dated 03.10.2015.

The Additional Sessions Judge, while noticing these grievances, dismissed the criminal revision without discussing them in detail.

The High Court, after examining the entire order-sheet, found that no preliminary order under Section 133 CrPC had been passed in the proceedings. The Court observed that it is a “sine-qua-non” for a Sub-Divisional Magistrate, District Magistrate or other Executive Magistrate initiating proceedings under Section 133 CrPC to draw up the preliminary order contemplated by the provision.

The Court further noted that where the person against whom such order is made appears and shows cause, the Magistrate is required to take evidence in the matter in the manner applicable to a summons case. In the present case, although the petitioner had filed a show-cause, no opportunity had been given to the parties to produce evidence in terms of Section 138 CrPC. The Court therefore held that the SDM's order dated 13.05.2017 was not sustainable due to non-compliance with the mandatory requirements of Sections 133 and 138 CrPC.

The High Court also found that the revisional court had failed to properly consider the petitioner's objections regarding the absence of the preliminary order, non-compliance with the procedure under Section 138 and the SDM's reliance on reports which predated the institution of the case.

Accordingly, the impugned orders were set aside and the matter was remitted to the Sub-Divisional Magistrate, Madhupur to pass a fresh order in accordance with law.

Appearance:

For the Petitioner: Mr. Onkar Nath Tewary, Advocate

For the State: Mrs. Vandana Bharti, Addl. P.P.

For O.P. No.2: Mr. Ankit Kumar, Advocate

For O.P. Nos.3 & 4: None

For O.P. No.5: Mr. Arvind Kr. Choudhary, Advocate