AJIT SINGH Vs. STATE

JUDGEMENT

(1.) The present revision petition assails the order of Sub-divisional Magistrate, Narela (hereinafter referred to as SDM?) dated 15 th June, 2007 passed under Section 133 CrPC, which reads as under:

(2.) Learned counsel for the Petitioner states that in terms of Section 133 CrPC, the SDM is duty bound to pass a conditional order and issue show cause notice to the Petitioner and in case he objects, then make the order absolute or pass a final order under Section 138 CrPC after proceeding as a summons case. However, in the present case, the SDM has passed a final order under Section 133 CrPC which is contrary to the requirements of Section 133 CrPC. Reliance is placed on C.A. Avarachan v. C.V. Sreenivasan and Anr., 1996 7 SCC 71 to contend that an omission on the part of SDM to pass a preliminary order which is sine qua non for initiating proceedings under Section 133 CrPC and without following the procedure provided under Section 138 CrPC in directing the appellant to permanently close the quarry/operation is unsustainable and vitiated. It is also contended that the reason assigned for passing the impugned order by the SDM is that the Petitioner was using the premises contrary to the provisions of Delhi Land Reforms Act and that the SDM has no authority to take any action under the Delhi Land Reforms Act and thus, the alleged impugned order is vitiated. It is contended that by the impugned order, despite the objections of the Petitioner having not been decided, final decision has been passed and there is no proceeding pending before the SDM now.

(3.) Per contra, the learned counsel for Respondent No.2 who has replied by way of an affidavit states that the impugned order is only a conditional order under Section 133 CrPC and the proceedings are still pending wherein a final decision will be taken. It is stated that under Section 133 CrPC, it is not essential that on the first day of the hearing a preliminary order is required to be passed by the Magistrate. In the present case, a show cause notice to the Petitioner was issued on 23 rd November, 2006 which is as per the requirement of Section 133 CrPC. Learned counsels for the Petitioner appeared on the 27 th November, 2006 and sought time to file reply and thus, the matter was fixed for 11 th December, 2006. On 11 th December, 2006, the reply intended to be filed was not signed by the Petitioners and further time was sought to file reply which was allowed and the matter was fixed for 19 th December, 2006. On 19 th December, 2006, instead of filing reply to show cause notice, an application was moved under section 256 CrPC stating that the complaint was not filed by the genuine persons and a case of forgery be registered against them. The Respondent No.2 gave further time to explain the case of public nuisance by allowing building material to be stocked on the land till 2 nd February, 2007 which was subsequently extended to 30 th July, 2007.