Whether reporters of local papers may be allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. MMO No.147 of 2010 Date of Decision: March 14, 2011. M/s Aryan Billiard & Pool Parlour & Fast Food Corner and others. …..… Petitioners. Versus State of H.P. and others. …. Respondents. Coram The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? Yes. For Petitioners : Mr. Ajay Kumar, Advocate. For Respondents : Mr. A.K. Bansal, Addl. Advocate General, for respondent No.1. Mr. Raj Kumar, Advocate, vice Mr. Manoj Thakur, Advocate, for respondent No.2. Mr. S.C. Sharma, Advocate, for respondent No.3. Surinder Singh, J (oral): By means of the present petition preferred under Section 482 of the Code of Criminal Procedure, the petitioners have questioned the validity of the judgment passed in revision petition by the learned Sessions Judge with respect to the order passed by the Sub-Divisional Magistrate (Rural) Shimla, in case No.55- IV of 2004 decided on 22nd November, 2007, on a police complaint filed by SHO, Shimla (East) under Section 133 of the Code of Criminal Procedure, in short ‘the Code’. 2 2. In short, the facts giving rise to the present petition can be stated thus. A commercial hall denoted by No.1 under 9th PSFS, Commercial Complex, Phase-III, near BCS, Shimla was allotted by Housing Board to M/s Aggarwal Bricks, Jeevan Deep Niwas, on lease at a sum of `24,66,000/- on certain terms and conditions. Dr. Ashok Kumar Gupta, respondent No.2 herein is the proprietor of M/s Aggarwal Bricks. 3. It is alleged that the aforesaid Hall is being run as ‘Billiards and Pool Parlour’ by petitioners S/Shri Umesh Sharma and Prashant Sharma in partnership, with original lessee Dr. Ashok Kumar Gupta, as per Partnership Deed Ex.P1, under the head and style of ‘M/s Aryan Billiards and Pool Parlour and Fast Food Corner’. 4. The petitioners herein allege that respondent No.2, in order to settle private dispute has manipulated the present proceedings before the Sub-Divisional Magistrate (Rural), Shimla because there was some dispute over the terms and conditions of their Partnership and that the proceedings under Section 133 of the Code were uncalled for. 3 5. Shri Ajay Kumar, learned counsel for the petitioners vehemently argued that the procedure adopted by the learned Sub-Divisional Magistrate in passing the final order, which was questioned before the Court of Sessions in revision petition was not in consonance with the provisions of the Code and further that the petitioners virtually were condemned unheard. 6. Contra, according to Shri S.C. Sharma, learned counsel for respondent No.3 submitted that the complaint made to the police prima-facie show that the original lessee has infracted para-12 of the Lease deed. Shri A.K. Bansal, learned Additional Advocate General for respondent No.1. and Shri Raj Kumar, learned counsel appearing vice for respondent No.2 have supported the impugned order passed by the learned Sub-Divisional Magistrate and also the judgment of the learned Sessions Judge, passed in revision, upholding the order impugned. 7. I have considered the rival contentions of the parties and have carefully and meticulously examined the record. 4 8. As a matter of fact the Residents Welfare Association, House Board, Phase-III, BCS, Shimla sent a communication in the name of Chief Justice of this Court, which was converted into a ‘Public Interest Litigation’ and registered as CWP (PIL) No.27 of 2004. Besides impleading the State of Himachal Pradesh as respondent, Deputy Commissioner, Shimla, Superintendent of Police, Shimla, Sub-Divisional Magistrate (Rural), Shimla, Director Pollution Control Board, H.P., Shimla and Dr. Ashok Kumar Gupta, owner of M/S Aryan Pool and Billiards Hall, were also added as respondents. They filed their affidavits and on the perusal of the entire record including the affidavits, the Division Bench of this Court passed the following order on 14.12.2005, which reads as under:- “The affidavits filed by the respondents clearly suggest that proceedings under Section 133 Cr.P.C. have already been initiated against respondent No.6. In view of this development we feel that we should not interfere in his matter at all and let those proceedings be concluded and taken to their logical end, on the merits of the case and strictly in accordance with law. The petition is disposed of.” 9. A complaint (Kalandra) alongwith other documents under Section 133 of the Code was filed by 5 the S.H.O. before the Sub-Divisional Magistrate (Rural) Shimla. On 28th July, 2004, after perusal of the record passed the following order:- “28.7.2004: Kalandra under Section 133 Cr.P.C. received from the SHO, Police Station, Chhota Shimla to be registered in the relevant register. The brief facts of the Kalandra reveals that the Residents Welfare Association, H.P. Housing Board Colony, Phase-III, BCS Shimla made written to the Hon’ble Chief Justice, H.P. High Court, against the Prop. Aryan Pool and Billiard Hall regarding public nuisance. The Hon’ble High Court referred that matter to S.P. Shimla for taking appropriate action. The S.P. Shimla referred the matter to the concerned Police Station for investigation and appropriate action. The local police enquired in to the matter and found that the above named respondent who is owner of Billiard Hall situated at BCS, Phase-III, New Shimla has started the Billiard Games. The Billiard is stated to be installed at the prime location of New Shimla area and students of nearby areas regular visitors in the hall. Due to this unlawful gathering of students, the families and girls students of the area are always insecure and frightened. They have to listen the derogatory remarks passed by these eve- teasers. This daily routine act of these visitors can creates law and order problems even they fight with each others. I am prima-facie satisfied with the police investigation and found that the business of above 6 named respondent is creating nuisance to the general public and can also disturb the public tranquility. Therefore, a show cause notice be issued to the respondent to stop this practice immediately and to attend this Court on 26.8.2004 at 10 A.M. to show cause why these orders may not made absolute.” 10. The present petitioners who claimed to be partners were not the parties, but Shri Ashok Kumar being the original lessee and one of the partners of ‘M/s Aryan Billiards and Pool Parlour’ was a party. He put in appearance on 26th August, 2004 and sought time for filing reply, later he filed the reply on 3.9.2004 challenging the procedure adopted by the learned Sub-Divisional Magistrate. 11. On the perusal of the record, I find that pursuant to the order dated 28th July, 2004, the learned Sub-Divisional Magistrate though he himself subjectively satisfied appeared to have been with the existence of public nuisance, thus ordered to stop the nuisance and to show cause on 26.8.2004, but record reveals that he did not serve the respondents with the conditional order as envisaged under sub-Section(1) of Section 133 of the Code. The summons served upon the parties were in cyclostyled form, which did not make even a 7 fleeting reference to the conditional order. Although the final order was passed against the respondents after recording the evidence of the parties, which purports to be on the basis of conditional order, which was never conveyed/ served or notified to the respondents in the complaint. 12. A perusal of Sections 133 and 138 of the Code reveals that it is the function of the Magistrate to conduct an enquiry and to decide as to whether there was a reliable evidence or not to come to the conclusion. 13. Section 133 of the Code aforesaid empowers only passing of order in accordance with the provisions of the said section. This section in terms says that the Magistrate may make a conditional order requiring the person causing such alleged obstruction or nuisance etc to remove the same within a time to be fixed in that order. It is only after passing of such order that further proceedings have to be taken by serving of the said order on the concerned person and person against whom such order is made has to comply the said order within the time specified. Consequence of his failure to 8 comply the order has to be dealt with in accordance with Section 136 of the Code, which reads as under:- “ 136. Consequences of his failing to do so:- If such person does not perform such act or appear and show cause, he shall be liable to the penalty prescribed in that behalf in Section 188 of the Indian Penal Code (45 of 1860), and the order shall be made absolute.” 14. It is thus imperative that the final order must be in conformity with sub-Section (1) of Section 133 of the Code aforesaid and for the sake of convenience Form 20 of Schedule-II of the Code could be used for guidance, so that the person is given opportunity to carry out the same and to show cause. 15. In the instant case, I fail to find out that after recording his subjective satisfaction by the Sub- Divisional Magistrate, the respondents were served with the conditional order in accordance with provisions of Section 134 of the Code. It is only thereafter, when the service of the conditional order is effected on the respondent(s), they are required to obey or to show cause and Section 136 of the Code provides for the consequence of his failing to do so. In case non- applicants dispute the existence of a public right, then the Magistrate would follow the procedure envisaged 9 under Section 137 of the Code and after he is satisfied that no such public right is involved, no further proceedings shall be taken in the case in terms of Section 138 of the Code. In addition, the Magistrate below can also resort to the provisions mentioned in Section 139 of the Code to direct the local investigation etc. 16. Thus Chapter-X of the Code dealing with Public nuisance is self explicit and comprehensive. It has to be followed. 17. The issuance of preliminary order in terms of Section 133(1) of the Code is sine-quo-non, failing which the final order is illegal and unsustainable in the law. As already stated above, no preliminary order appears to have been issued and notified to the respondents by the Sub-Divisional Magistrate in accordance with law, thus, the final order passed by him is wrong and illegal and the judgment/ order passed by the Revisional Court upholding the order of the Sub-Divisional Magistrate dated 22nd November, 2007 passed in case No.55-IV of 2004 is hereby set- aside. 10 18. As a consequence thereof, the case is remanded back to the Sub-Divisional Magistrate (Rural), Shimla with a direction to resume the proceedings from the stage of order dated 28.7.2004 by issuing/serving the preliminary order to the respondents including the petitioners herein in terms of Section 133(1) of the Code of Criminal Procedure and then to dispose of the matter in accordance with Chapter-X of the Code of Criminal Procedure. The petitioners herein shall also be impleaded as respondents/ non-applicants. 19. The parties are hereby directed to be present before the learned Sub-Divisional Magistrate (Rural), Shimla on Ist April, 2011. Matter stands disposed of. Cr.M.P.NO.583/2010. Dismissed as infructuous. March 14, 2011. (Surinder Singh) (Pds) Judge.