The Himachal Pradesh High Court partly allowed a petition, filed to quash the order dated 25.7.2023, passed by the learned Sub Divisional Magistrate (SDM), and the proceedings pending against the petitioner. The Court observed that the presence of a conditional order is necessary before it can be made absolute, modified, or discharged.
Brief Facts:
A report was made to the Deputy Director, Animal Husbandry stating that Pradhan Singh-respondent had obstructed the passage leading to the dispensary which was causing difficulty in approaching the dispensary. This letter was placed before the SDM with the noting made by the Reader. Learned SDM held that from the perusal of the statements of all present, it was evident that there was a dire need to restore the path. An interim order under Section 142 of Cr.P.C. was passed as per the separate detailed order. Being aggrieved from the order passed by learned SDM, the present petition has been filed asserting that the petitioner is a co-owner in possession of the land.
Contentions of the Petitioner:
The Learned Counsel for the Petitioner submitted that the learned SDM erred in passing the order. He had not passed the conditional order, which is the requirement for proceeding further. The respondent had appeared before the learned SDM and filed a reply denying the existence of the public path. Therefore, it was incumbent upon the SDM to conduct the inquiry in the presence of the respondent. Learned SDM failed to conduct the inquiry. Therefore, he prayed that the present petition be allowed and order passed by learned SDM, and the complaint filed before him be quashed.
Contentions of the Respondent:
The Learned Counsel for the Respondent supported the order passed by the learned SDM and submitted that no interference is required with the same.
Observations of the Court:
The Court noted that the learned SDM did not pass a conditional order. He simply wrote, “Institute case under Section 133 of Cr.P.C. and issue conditional order for removal of nuisance within seven days”. Further, the Court said that it is not permissible to conduct an inquiry under Section 138 of Cr.P.C. ex-parte in the absence of the respondent. Learned SDM erred in holding the inquiry ex-parte.
The Court observed that conditional order is the foundation on which the whole of the proceedings rests. If the person to whom the conditional order is directed, accepts the order and complies with the same, the proceedings terminate, but if he feels aggrieved and shows cause, the inquiry has to be conducted and the order can be made absolute, modified, or discharged after the inquiry. Thus, the presence of conditional order is necessary before it can be made absolute, modified, or discharged. The purpose of passing the conditional order is to make the other party aware of the nature of the order that can be passed in the proceedings.
The decision of the Court:
The Himachal Pradesh High Court, partly allowing the petition, held that the order dated 25.7.2023, passed by learned SDM is set aside.
Case Title: Pardhan Singh Jhouta v State of Himachal Pradesh & Ors.
Coram: Hon’ble Justice Rakesh Kainthla
Case no.: Cr. MMO No. 793 of 2023
Advocate for the Petitioner: Mr. P.P. Chauhan
Advocate for the Respondents: Mr. Prashant Sen
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