1. Complaint under Section 133 CrPC for removal of dangerous trees — Conditional order limited to branches but final order directed tree removal. (Para 2 , 3 , 5 , 22 )
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2026 Supreme(Online)(HP) 3221
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
HON'BLE MR. JUSTICE RAKESH KAINTHLA
Om Chand – Appellant
Versus
STATE OF HP AND OTHERS – Respondent
CRMMO/284/2025
Important Points
The High Court may exercise inherent powers under Section 482 CrPC to correct miscarriages of justice despite the Section 397(3) bar on second revisions. Additionally, a final order under Section 133 CrPC cannot exceed the scope of the initial conditional order without prior modification and notice.
Subject
Criminal Law - Public Nuisance
Act Referred
Code of Criminal Procedure: S.133(d), S.482, S.397(1), S.401, S.483, S.146, S.202, S.135, S.137, S.138, S.438
Bharatiya Nagarik Suraksha Sanhita: S.528
Indian Penal Code: S.500, S.498-A
Limitation Act: Art.137
Specific Relief Act, 1963: S.6
Bharatiya Nagarik Suraksha Sanhita: S.528
Indian Penal Code: S.500, S.498-A
Limitation Act: Art.137
Specific Relief Act, 1963: S.6
Headnote
(A) Code of Criminal Procedure, 1973 - Sections 482 and 397(3) - Inherent powers of High Court - High Court may exercise its inherent powers under Section 482 to prevent miscarriage of justice, abuse of process, or correct a failure of justice even when a second revision is barred by Section 397(3), though such power must be exercised sparingly and cautiously. (Paras 13-18)
(B) Code of Criminal Procedure, 1973 - Section 133 - Conditional order for removal of nuisance - Foundational nature of conditional order - A conditional order puts the party on notice and forms part of natural justice; a Magistrate cannot pass a final order that exceeds the scope of the conditional order without first modifying the conditional order to apprise the party of the modified requirement. (Paras 21-24)
Facts of the case:
A complaint was filed alleging that trees on a neighboring property posed a threat to the complainant's house. The trial court issued a conditional order for the removal of tree branches. After conducting an inquiry and recording evidence, the trial court passed a final order directing the removal of the entire trees. This order was subsequently upheld by the revisional court. The petitioner challenged these orders before the High Court, asserting that the final order was beyond the scope of the initial conditional order.
Findings of Court:
The court found that the trial court committed a jurisdictional error by directing the removal of entire trees when the conditional order only required the removal of branches. While Section 138(2) permits modification of an order, such modification must be made prior to making the order absolute to ensure the party is informed of the change. The revisional court failed to notice this jurisdictional error.
Issues: Whether the High Court can exercise jurisdiction under Section 482 Cr.P.C. after a revision has been decided by the Sessions Court, and whether a final order under Section 133 Cr.P.C. can vary from the scope of the preceding conditional order without prior modification and notice.
Ratio Decidendi: The inherent powers of the High Court under Section 482 are not limited by the prohibition on second revisions under Section 397(3) in cases of serious miscarriage of justice. Furthermore, because the conditional order is the foundation of proceedings under Section 133 Cr.P.C., a final order cannot substantially diverge from it without proper modification and notice to the affected party to satisfy the principles of natural justice.
Result: Petition dismissed.
(B) Code of Criminal Procedure, 1973 - Section 133 - Conditional order for removal of nuisance - Foundational nature of conditional order - A conditional order puts the party on notice and forms part of natural justice; a Magistrate cannot pass a final order that exceeds the scope of the conditional order without first modifying the conditional order to apprise the party of the modified requirement. (Paras 21-24)
Facts of the case:
A complaint was filed alleging that trees on a neighboring property posed a threat to the complainant's house. The trial court issued a conditional order for the removal of tree branches. After conducting an inquiry and recording evidence, the trial court passed a final order directing the removal of the entire trees. This order was subsequently upheld by the revisional court. The petitioner challenged these orders before the High Court, asserting that the final order was beyond the scope of the initial conditional order.
Findings of Court:
The court found that the trial court committed a jurisdictional error by directing the removal of entire trees when the conditional order only required the removal of branches. While Section 138(2) permits modification of an order, such modification must be made prior to making the order absolute to ensure the party is informed of the change. The revisional court failed to notice this jurisdictional error.
Issues: Whether the High Court can exercise jurisdiction under Section 482 Cr.P.C. after a revision has been decided by the Sessions Court, and whether a final order under Section 133 Cr.P.C. can vary from the scope of the preceding conditional order without prior modification and notice.
Ratio Decidendi: The inherent powers of the High Court under Section 482 are not limited by the prohibition on second revisions under Section 397(3) in cases of serious miscarriage of justice. Furthermore, because the conditional order is the foundation of proceedings under Section 133 Cr.P.C., a final order cannot substantially diverge from it without proper modification and notice to the affected party to satisfy the principles of natural justice.
Result: Petition dismissed.
Legal Category Hierarchy
- practice and procedure
- administrative law
Petitioner Advocates:Ashok Kumar Verma ,Respondent Advocate: AG AG Vijay Kumar Verma
Table of Contents
2. Petitioner argued final order exceeded conditional order scope — State and complainant opposed, citing opportunity and evidence of danger. (Para 9 , 10 , 11 )
3. Petition dismissed; orders set aside due to jurisdictional error — conditional order cannot be varied without modification before being made absolute. (Para 27 )
4. When can the High Court exercise inherent power under Section 482 CrPC after a revision is barred under Section 397(3)?
Only when there is a grave miscarriage of justice, abuse of process, or breach of mandatory statutory provisions, not as a substitute for a second revision. (Para 13 , 14 , 15 , 16 , 17 , 18 )
5. What is the scope of a conditional order under Section 133 CrPC before it can be made absolute?
The conditional order is the foundation of proceedings. Unless accepted, it can only be made absolute, modified, or discharged after inquiry; the final order cannot differ from the conditional order without proper modification. (Para 19 , 20 , 21 , 22 )
6. Does a Magistrate have jurisdiction to pass a final order different from the conditional order under Section 133 CrPC?
No. The Magistrate can only make the conditional order absolute (with or without modification) after inquiry; any different final order without amending the conditional order is invalid. (Para 22 , 24 )
7. Is it permissible for a revisional court to ignore a jurisdictional error by the trial court in a Section 133 CrPC proceeding?
No. If the trial court exceeded its jurisdiction by varying the conditional order without proper modification, the revisional court must correct that error, and the High Court can intervene under Section 482 CrPC. (Para 23 , 24 )
Rakesh Kainthla, Judge
The petitioner has filed the present petition against the order dated 25.2.2025, passed by the learned Additional Sessions Judge, Sarkaghat, District Mandi, H.P. (learned Revisional Court), vide which the order dated 9.8.2023, passed by the learned Sub Divisional Magistrate (SDM), Dharampur, District Mandi, H.P., (learned Trial Court) was upheld. (The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned trial Court for convenience).
2. Briefly stated, the facts giving rise to the present petition are that the complainant made a complaint to the learned Trial Court asserting that the respondent (petitioner before this Court) is the owner of the land located adjacent to the complainant’s house. Two big trees were growing in the respondent's land. The branches of the trees extended over the complainant’s house. They touch the complainant’s house during the rainy season and heavy rain. The trees were likely to fall on the complainant’s house and cause damage to it. The complainant had repeatedly requested the respondent to cut and remove the trees, but in vain. Hence, a complaint was made before the learned Trial Court to take action to remove the trees.
3. Learned Trial Court passed an order on 27.11.2020: -
“We may issue order regarding removal of branches which are posing threat to the house. Put up a draft accordingly”
4. The learned Trial Court called the report from the Field Agency, and recorded statements of Sarwan Kumar and the complainant on 29.12.2022 and the respondent Om Chand and his son Lekh Raj on 16.02.2023.
5. Learned Trial Court passed a final order on 9.8.2023 holding that the trees had become a public nuisance within the meaning of Section 133 (d) of the Code of Criminal Procedure (Cr.PC) and needed to be removed for the prevention of any injury or damage to the complainant’s life and property. Therefore, the learned Trial Court made the conditional order absolute and ordered the respondents to remove the above-mentioned trees within fifteen days of the order, failing which an action would be taken as per the law.
6. Being aggrieved by the order passed by the learned Trial Court, the respondent filed a revision which was decided by the learned Additional Sessions Judge, Sarkaghat, District Mandi, H.P. (learned Revisional Court). Learned Revisional Court held that the learned Trial Court had passed the order after taking the report of the Field Agency and hearing the parties. The respondent claimed that the order was passed under the political influence and ignorance of a material fact, but no such fact was placed before the Court. There was no infirmity in the order passed by the learned Trial Court, hence the revision preferred by the respondent was dismissed.
7. Being aggrieved by the orders passed by the learned Courts below, the respondent has filed the present petition for quashing the orders passed by the learned Courts below. It has been asserted that the orders passed by learned Courts below are unreasoned, illegal and unwarranted. The learned Trial Court had passed the order under political influence, and this aspect was ignored by the learned Revisional Court. Therefore, it was prayed that the present petition be allowed and the orders passed by the learned Courts below be set aside.
8. I have heard Mr Ashok Kumar Verma, learned counsel for the petitioner and Mr Lokender Kutlehria, learned Additional Advocate General for the respondent Nos. 1 and 2/State and Mr Vijay Kumar Verma, the learned counsel for respondent No.3/complainant.
9. Mr Ashok Kumar Verma, learned counsel for the petitioner/original respondent, submitted that the learned Trial Court had passed a conditional order of removing the branches of the trees, but passed a final order of removing the trees. Learned Trial Court could have only made the conditional order absolute, and it was not permissible for the learned Trial Court to pass a different final order without m
