Ghulam Mohammad Dar vs Mohammad Amin Dar
2022 Latest Caselaw 611 j&K/2

  HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT
                   SRINAGAR


                                             Reserved on: 10.05.2022
                                             Pronounced on: 18.05.2022


                         CRM(M) No.131/2019
                     CrlM Nos.393/2021 & 459/2019


GHULAM MOHAMMAD DAR                                   ...PETITIONER(S)

          Through: Mr. Shafqat Nazir, Advocate.

Vs.

MOHAMMAD AMIN DAR                                 ....RESPONDENT(S)

          Through: Mr. Zahoor Ahmad Shah, Advocate.


CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE


                                JUDGMENT

1) The petitioner has challenged order dated 22.03.2019 passed by

1st Additional Sessions Judge, Baramulla, as also order dated

18.11.2018 passed by Sub Divisional Magistrate, Pattan.

2) Record of the case shows that respondent made an application

before Tehsildar, Pattan, complaining therein that the petitioner has

grown ten poplar trees in his premises adjacent to the house of the

applicant/respondent herein and these poplar trees pose threat to his life

and property. The application, it seems, was subsequently transferred to

Tehsildar, Singhpora. Yet another application dated 26.10.2017 was

made by the respondent before Sub Divisional Magistrate, Pattan, who

sought status report regarding the application from Tehsildar,

Singhpora, who, in turn, visited the spot and reported that poplar trees

belonging to the petitioner herein pose threat to the life and property of

the respondent. It was also mentioned in the report that the petitioner

has agreed to cut down these trees. It seems that upon receipt of this

report, Sub Divisional Magistrate, Pattan, issued summons to the

petitioner and after hearing the parties, a direction was passed by the

learned Magistrate that these poplar trees be removed as they pose

threat to the life and property of the respondent.

3) The aforesaid order of Sub Divisional Magistrate, Pattan, was

challenged by the petitioner by way of a revision petition before

Principal Sessions Judge, Baramulla. The learned Sessions Judge

allowed the revision petition by setting aside the order dated

18.12.2017 of the Sub Divisional Magistrate, Pattan, and further

directed the learned Magistrate to pass order afresh after following the

mandate of law governing the subject. Accordingly, the case again

landed before the Sub Divisional Magistrate, Pattan, and the learned

Magistrate, after hearing the parties, has passed the impugned order

dated 18.11.2018 in terms of Section 137 of the Cr. P. C, whereby the

learned Magistrate confirmed the conditional order passed by him

under Section 133 of the Cr. P. C and directed removal of the trees

planted by the petitioner.

4) The aforesaid order was challenged by way of a revision petition

by the petitioner before the Court of Additional Sessions Judge,

Baramulla, who upheld the legality and validity of the impugned order

passed by the learned Sub Divisional Magistrate, Pattan, and dismissed

the revision petition.

5) Both the aforesaid orders, one passed by the learned Magistrate

and the other passed by the Revisional Court, are under challenge

before this Court by way of instant proceedings.

6) It has been contended by the petitioner that the impugned orders

passed by the courts below are not sustainable in law as the provisions

contained in Chapter X of the J&K Cr. P. C relate to public nuisance

and, as such, an order, either under Section 133 or under Section 137 of

the Cr. P. C, which fall under the aforesaid Chapter of the Code, cannot

be passed in respect of an act which does not affect the public at large.

It is contended that the dispute between petitioner and the respondent is

purely of civil nature and the act complained of by the respondent does

not affect the public at large. Thus, invoking of provisions contained in

Chapter X of the J&K Cr. P. C is not permissible. It has also been

contended that the learned Sub Divisional Magistrate, Pattan, has not

followed the procedure prescribed under Section 137 of the Cr. P. C,

inasmuch as the learned Magistrate has not recorded any evidence.

7) Per contra, learned counsel for respondent has contended that

the act complained of by respondent No.1 not only affects respondent

but is also affects his family members and property and even passersby

can be affected if the poplar trees planted by the petitioner fall due to

wind storm or due to any other exigency. Thus, according to learned

counsel for the respondent, it cannot be stated that it is not a case of

public nuisance. The learned counsel has further contended that while

passing the impugned order dated 08.11.2018, the learned Magistrate

has followed the procedure provided under Chapter X of the Code in its

entirety.

8) I have heard learned counsel for the parties and perused the

material on record including the trial court record.

9) A perusal of the record of the Magistrate reveals that the learned

Magistrate upon receipt of the complaint from the respondent has

issued notice to the petitioner who has also filed objections to the

application of the respondent. The record further reveals that status

report has been called by the learned Magistrate from Tehsildar,

Singhpora, who, in turn, has obtained report from Naib Tehsildar,

Singhpora. In his report, the Naib Tehsildar has submitted that upon

visit to the spot, it was found that the petitioner has planted poplar trees

and in case of any untoward incident, there is danger that the said

poplar trees may fall on the house of the respondent thereby causing

damage to it. A recommendation has been made in the report that these

trees are required to be removed.

10) Before determining as to whether the procedure prescribed under

Section 137 of the Cr. P. C has been followed by the learned Magistrate

by merely obtaining status report from the Tehsildar/Naib Tehsildar

concerned and inviting objections from the petitioner, it would be apt to

notice the provisions contained in Section 137 of the Cr. P. C, which

reads as under:

"137. Procedure where he appears to show cause.--(l) If he appears and show cause against the order, the Magistrate shall take evidence in the matter as in a summons case.

(2) If the Magistrate is satisfied that the order is not reasonable and proper, no further proceedings shall be taken in the case.

(3) If the Magistrate is not so satisfied, the order shall be made absolute"

11) A perusal of the aforesaid provision reveals that if the person

against whom a conditional order is made under Section 133 of the

J&K Cr. P. C appears and shows cause against the order, the Magistrate

shall take evidence in the matter as in a summons case. The show cause

notice has to be issued to the person against whom a conditional order

under Section 133 of the Cr. P. C has been made in terms of Section

135 of the Cr. P. C.

12) In the instant case the record clearly suggests that after making

of an order under Section 133 of the Cr. P. C, whereby petitioner was

directed to remove the poplar trees, show cause notice has been issued

to him to which he has responded and filed his objections. There is

nothing on record to even remotely suggest that the learned Magistrate

has taken any evidence in the matter. The learned Magistrate has, while

making the conditional order absolute, relied upon the report of the

Tehsildar/Naib Tehsildar. The question which arises for consideration

is whether calling of report from Naib Tehsildar or Tehsildar concerned

is a substitute to the recording of evidence. The requirement of law as

provided in Section 137 of the J&K Cr. P. C is recording of evidence in

the matter as in a summons cases.

13) Chapter XX of the J&K Cr. P. C provides procedure for trial of

summons cases by Magistrate. Section 244 of the said provision, which

is relevant to the context, reads as under:

"244. Procedure when no such admission is made.--(1) If the Magistrate does not convict the accused under the preceding section or if the accused does not make such admission, the Magistrate shall proceed to hear the complainant (if any), and take all such evidence as may be produced in support of prosecution except such evidence which the accused may admit in an application made in this behalf and also to hear the accused and take all such evidence as he produces in his defence :

Provided that the Magistrate shall not be bound to hear any person as complainant in any case in which the complaint has been made by a Court.

(2) The Magistrate may, if he thinks fit, on the application of the complainant or accused, issue a summons to any witness directing him to attend or to produce any document or other thing.

(3) The Magistrate may, before summoning any witness on such application, require that his reasonable expenses, incurred in attending for the purposes of the trial, be deposited in Court."

14) From a perusal of sub-section (1), quoted above, it is clear that a

Magistrate has to take all such evidence as may be produced by the

prosecution and the defence. When the said provision is read in

conjunction with Section 137(1) of the Cr. P. C, it becomes clear that

the Magistrate, while determining the proceedings under Chapter X of

the Cr. P. C, has to record evidence of both complainant and the person

against whom conditional order under Section 133 of the Cr. P. C has

been made. In the instant case, the record suggests that neither the

evidence of complainant i.e. respondent herein nor the evidence of

petitioner, i.e. the person against whom a conditional order under

Section 133 of the Cr. P. C has been passed, has been recorded by the

learned Magistrate. Thus, the procedure provided under Section 137(1)

of the Cr. P. C has not been complied with by the learned Magistrate.

The calling of report from the Tehsildar/Naib Tehsildar is, therefore,

not a substitute to recording of evidence.

15) In my aforesaid view, I am supported by the judgment of this

Court in the case of Kashmira Singh vs. Darshan Singh, 2005 (1) SLJ

131, wherein the Court has, while dealing with the similar proposition

of law, observed as under:

"5. In the instant case the entire finding is based on the inspection of the Magistrate and without reference to any material/evidence on record. The inspection may be for better appreciation of evidence on record but same should not be used as sole basis for deciding the controversy. The revisional Court has rightly pointed out that the order passed by the Magistrate is in clear violation of express provisions of Section 133 to 138 of the Code of Criminal Procedure. It was incumbent for the Magistrate to be satisfied from the evidence on record, including the statement of the complainant, that the poultry farm established by the respondent in his residential house was in fact creating public nuisance, before proceeding under Section 133 Cr. P. C, in directing the removal of Poultry farm. The Magistrate was duty bound to take evidence in the matter, as in summons case. he has thereafter to satisfy himself that order as originally made or subject to such modification as the considers necessary, is reasonable and proper and it is only after recording such satisfaction that conditional order can be made. This, in the instant case, has not been done by the Magistrate and, therefore, the impugned order is unworthy of being sustained."

16) Thus, from the above statement of law, it is clear that a

Magistrate, while dealing with a case pertaining to public nuisance, is

duty bound to take evidence in the matter as in a summons case which,

in the instant case, has not been done by the learned Magistrate. Thus,

the procedure prescribed by Section 137 of the Cr. P. C has not been

adhered to by the learned Magistrate before passing the impugned

order. The Revisional Court, while passing the impugned order, has not

dealt with this aspect of the matter at all.

17) For the foregoing reasons, the impugned order passed by the

learned Magistrate as also the order passed by the Revisional Court are

not sustainable in law and the same deserve to be set aside.

18) Accordingly, the petition is allowed and the impugned orders

passed by the learned Sub Divisional Magistrate, Pattan, and learned

Additional Sessions Judge, Baramulla, are set aside. The case is

remanded back to the learned Sub Divisional Magistrate, Pattan, with

the direction to record evidence of the parties in the case in the light of

the observations made hereinbefore and thereafter pass an order in

accordance with law.

19) A copy of this order be sent to the learned Sub Divisional

Magistrate, Pattan, for information and compliance.

(Sanjay Dhar) Judge Srinagar, 18.05.2022 "Bhat Altaf, PS"

                   Whether the order is speaking:     Yes/No
                   Whether the order is reportable:   Yes/No