Court Emphasizes Necessity of Preliminary Order and Opportunity to Adduce Evidence in Public Nuisance Proceedings; Case Remitted for Fresh Decision
In a significant judgment delivered on October 8, 2026, the Jharkhand High Court set aside the orders passed by the Sub-Divisional Magistrate (SDM), Madhupur, and the Additional Sessions Judge-VI, Deoghar, in a public nuisance case initiated under Section 133 of the Code of Criminal Procedure (CrPC). The petitioner, Sushil Kumar Biswas, had challenged the order directing him to remove an alleged obstruction from a public way, contending that the orders violated mandatory procedural safeguards.
The proceedings originated when opposite parties filed an application before the SDM, Madhupur, alleging obstruction of a public road at Thoka No. 220, Holding No. 127. Based on this, Criminal Miscellaneous Case No. 370 of 2015 was instituted. The SDM called for a report from the Circle Officer to ascertain whether the land was public and if there was indeed an obstruction. The Circle Officer's report, dated October 3, 2015, stated that no obstruction existed on the road.
Despite this report, the SDM passed a final order on May 13, 2017, directing the removal of the obstruction without first issuing a preliminary or conditional order as mandated by Section 133 CrPC. Furthermore, the SDM failed to provide the petitioner an opportunity to present evidence, a requirement under Section 138 CrPC which governs summons cases. The petitioner filed a show-cause notice but was not allowed to adduce evidence.
Challenging this order, the petitioner filed a criminal revision before the Additional Sessions Judge, who dismissed the revision without adequately addressing the procedural violations pointed out by the petitioner. Aggrieved, the petitioner approached the Jharkhand High Court under Section 482 CrPC, seeking quashing of both orders.
Justice Anil Kumar Choudhary, after hearing the parties and examining the record, held that the omission to issue a preliminary order and not following the procedure under Section 138 CrPC were fatal to the proceedings. Citing the Supreme Court's ruling in C.A. Avarachan vs. C.V. Sreenivasan (1995 SC 415), the Court reiterated that the drawing up of a preliminary order is a sine qua non for initiating proceedings under Section 133 CrPC. Additionally, compliance with Section 138 CrPC, which ensures the parties are given a fair opportunity to produce evidence, is mandatory.
The Court noted that the SDM had ignored the Circle Officer's report of October 2015 and relied on outdated reports from 2005 and 2006, which were irrelevant to the case. Further, the Additional Sessions Judge failed to address the petitioner's grievance regarding procedural lapses, leading to a grave illegality in dismissing the revision.
Accordingly, the High Court quashed and set aside the orders dated May 13, 2017, and September 4, 2021, in so far as they pertained to the petitioner. The matter was remitted back to the SDM, Madhupur, with directions to pass a fresh order in strict compliance with the procedural requirements of Sections 133 and 138 CrPC.
This judgment underscores the importance of procedural safeguards in public nuisance cases and reiterates that failure to comply with mandatory provisions renders the orders unsustainable in law.
Bottom Line:
Proceedings under Section 133 CrPC cannot be sustained without drawing a preliminary/conditional order and without following the procedure under Section 138 CrPC by giving opportunity to parties to adduce evidence; orders passed in violation of these mandatory requirements are liable to be quashed.
Statutory provision(s):
Section 133 CrPC, Section 137 CrPC, Section 138 CrPC, Section 188 IPC, Section 482 CrPC
Sushil Kumar Biswas v. State of Jharkhand, (Jharkhand) : Law Finder Doc Id # 2997207
