The High Court of Jharkhand held that unless a Magistrate issues a conditional order under Section 133(1) CrPC, there is no requirement to proceed under Sections 137 or 138, including taking evidence as in a summons case. This judgment reaffirms and elucidates the procedural framework for public nuisance orders, clarifying common misapplications, and stands as binding precedent within Jharkhand.
Summary
| Category | Data |
|---|---|
| Case Name | Cr.M.P./1205/2017 of Kashi Rajak Vs The State Of Jharkhand And Ors |
| CNR | JHHC010017802017 |
| Date of Registration | 17-05-2017 |
| Decision Date | 15-10-2025 |
| Disposal Nature | Disposed Off |
| Judgment Author | Hon’ble Mr. Justice Anil Kumar Choudhary |
| Court | High Court of Jharkhand |
| Bench | Single Judge Bench (Justice Anil Kumar Choudhary) |
| Precedent Value | Binding on subordinate courts within Jharkhand |
| Overrules / Affirms | Quashes the order of Additional Sessions Judge-V, Giridih; restores Magistrate’s order |
| Type of Law | Criminal Procedure (CrPC – Chapter X, Sections 133, 137, 138) |
| Questions of Law | Whether the requirement to take evidence under Section 138 CrPC arises absent a conditional order under Section 133(1) CrPC. |
| Ratio Decidendi | The High Court held that the requirement for a Magistrate to take evidence as in a summons case under Section 138 CrPC is contingent upon the making of a conditional order under Section 133(1) CrPC. If the Magistrate, upon inquiry, finds no case to proceed, and no conditional order is issued, the procedure mandated under Sections 137 and 138 is not triggered. The decision clarifies the sequencing and necessity of procedural steps for public nuisance proceedings under Chapter X of the CrPC. |
| Judgments Relied Upon | None expressly stated |
| Logic / Jurisprudence / Authorities Relied Upon by the Court | Plain/conjoint reading of Sections 133, 137, 138 CrPC |
| Facts as Summarised by the Court | The dispute arose from allegations that the petitioner obstructed a public road; upon reports and affidavits, the Magistrate found no encroachment and dropped proceedings under Section 133 CrPC. This order was set aside by the Sessions Judge, who held that evidence should have been recorded. The High Court restored the Magistrate’s order, clarifying the legal requirement. |
Practical Impact
| Category | Impact |
|---|---|
| Binding On | All subordinate courts in Jharkhand |
| Persuasive For | Other High Courts |
| Overrules | Quashes the order in Criminal Revision No.68 of 2015 by Additional Sessions Judge-V, Giridih |
| Follows | Follows the codified sequence under Sections 133, 137, and 138 of CrPC |
What’s New / What Lawyers Should Note
- Reaffirms that merely filing an application under Section 133 CrPC does not oblige the Magistrate to issue a conditional order or proceed to record evidence.
- The obligation to take evidence under Section 138 CrPC arises only after a conditional order under Section 133(1) is made.
- Procedural missteps—such as requiring evidence in the absence of a conditional order—constitute a grave illegality.
- Lawyers should cite this judgment to challenge unwarranted evidentiary proceedings in similar Chapter X CrPC cases.
- Emphasizes the Magistrate’s discretion at the preliminary stage to drop proceedings if no prima facie case is found.
Summary of Legal Reasoning
- The Court analyzed the framework of Sections 133, 137, and 138 of the Code of Criminal Procedure.
- Section 133(1) allows a Magistrate to make a conditional order for removal of obstruction only if satisfied from a police report or other information, and after taking such evidence as deemed necessary, that a public nuisance exists.
- The issuance of a conditional order is an essential precondition to triggering the subsequent procedures under Sections 137 and 138 (such as calling upon the opposite party to show cause and taking evidence as in a summons case).
- If the Magistrate, upon preliminary inquiry, finds no grounds to proceed and does not issue a conditional order, there is no requirement to call upon the second party or to record evidence under Section 138.
- The Sessions Judge incorrectly presumed a duty to record evidence in any proceeding under Section 133, irrespective of whether a conditional order was issued.
- The High Court found that in the absence of a conditional order, the Magistrate’s approach in dropping the proceedings without recording evidence was proper and in accordance with law.
Arguments by the Parties
Petitioner
- Asserted that the Sub-Divisional Magistrate never issued a conditional order under Section 133(1) CrPC.
- Since no such order was made, the requirements of Section 138 did not arise.
- Contended the Additional Sessions Judge-V committed an illegality by setting aside the Magistrate’s order.
- Prayed for restoration of the original order dropping proceedings.
Respondents (State and Opposite Party No. 2)
- Contended that registration of a proceeding under Section 133 CrPC obliges the Magistrate to record evidence under Section 138.
- Argued that the Sessions Judge had rightly set aside the Magistrate’s order for failure to take such evidence.
- Sought dismissal of the Cr.M.P. as meritless.
Factual Background
The case originated from an allegation by the opposite party that the petitioner was obstructing a public road and had encroached the land by building a house on it. Proceedings under Section 133 CrPC were initiated. The Magistrate, having reviewed police and Circle Officer reports as well as affidavits, found no wrongful encroachment or obstruction and dropped the proceedings without issuing a conditional order. The order was challenged in revision; the Sessions Judge set aside the Magistrate’s dropping order, holding that evidence should have been recorded. The High Court restored the Magistrate’s order.
Statutory Analysis
- Section 133 CrPC: Empowers the Magistrate to issue a conditional order for the removal of public nuisances, subject to initial satisfaction based on reports or information received. The Court clarified that a conditional order need not be made merely upon filing of an application.
- Section 137 CrPC: Pertains to the process if the opposite party denies public right; triggers only after a conditional order.
- Section 138 CrPC: Mandates recording of evidence as in summons cases only after the opposite party responds to the conditional order.
- The Court emphasized that these sections must be read together, and the procedural steps follow a specific sequence.
Alert Indicators
- ✔ Precedent Followed – Existing procedural law under Sections 133–138 CrPC is affirmed and correctly sequenced.