The main legal point established in the judgment is the mandatory requirement of passing a conditional order for the removal of nuisance under Section 133(1) of the CrPC and the consequences of non-compliance with this requirement.

ORDER :

Sanjay K. Agrawal, J.

1. This petition under Section 482 of the CrPC is directed against the impugned order dated 17.10.2013 passed by the Additional Sessions Judge, Sarangarh, in Criminal Revision Case No. 05/2013, by which the revision petition filed by the petitioner has been dismissed affirming the order passed by learned Sub Divisional Magistrate, Sarangarh under Section 133 of the CrPC directing removal of nuisance under Section 133(1)(a) of the CrPC.

2. The essential facts necessary for adjudication of the petition are as under:

2.1. Respondent No. 1 herein filed an application under Section 133 of the CrPC before the Sub Divisional Magistrate, Sarangarh stating inter alia that the present petitioner has made a bore on abadi site in a land adjacent to his house and thereby caused public nuisance and sought removal under Section 133 of the CrPC, in which learned SDM issued notice to the petitioner. Reply was filed by the petitioner stating that he has made a bore on his own abadi site since long back, for supply of water inside his house and as such, he has exclusive right and further stated that no prima facie case for taking cognizance under Section 133 of the CrPC is made out.

3. Learned SDM also called for report of revenue inspector and allowed the parties to lead evidence and came to the conclusion that the petitioner has made bore on abadi land (Government land) and thereby possessed the said land recorded as abadi land, which is causing public nuisance and thereby invoked Section 133(1)(a) of the CrPC and directed the petitioner to remove the motorpump installed on land in question. Order of the learned SDM was challenged by the petitioner before the revisional Court. The revisional Court by the impugned judgment dismissed the revision affirming the order passed by the SDM. Questioning that order, this petition under Section 482 of the CrPC has been filed by the petitioner herein.

4. Mr. S.N. Nande, learned counsel for the petitioner, would submit that the learned SDM has not passed any conditional order as required under Section 133(1)(a) of the CrPC directing the petitioner to remove such obstruction/nuisance and only upon passing a conditional order, he could have recorded the evidence following the procedure laid down in Sections 134 to 143 of the CrPC and as such, passing of final order without passing a conditional order/preliminary order under Section 133(1)(a) of the CrPC and affirming such order by the revisional Court deserve to be set aside.

5. Mr. Ratan Pusty, learned counsel for respondent No. 1/complainant and Mr. Aditya Sharma, learned Panel Lawyer for respondent No. 2/State, would support the impugned order and submit that at the best, it is only a procedural illegality and by that proceeding would not be rendered void and liable to be quashed.

6. I have heard learned counsel for the parties, considered their rival submissions made hereinabove and also went through the records with utmost circumspection.

7. It is true that an application under Section 133 of the CrPC was filed by respondent No. 1 herein for directing the petitioner herein to uninstall the bore well and motorpump installed by the petitioner alleging it to be on governmental property and causing public nuisance under Section 133(1)(a) of the CrPC, in which learned SDM in March, 2010 issued notice to the petitioner herein and also called for enquiry report from revenue inspector and from time to time, the matter was adjourned and ultimately, after taking evidence of the parties, final order was passed by the SDM on 28.12.2012 directing removal of motorpump from Government land.

8. Chapter X of the CrPC provides for maintenance of public order and tranquility. Part 'A' provides for unlawful assemblies. Part 'B' provides for public nuisance. Proceedings under Section 133 are not intended to settle private disputes between different members of the public. They are in fact intended to protect the public as a whole against inconvenience. T