2025:HHC:28284 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No. 775 of 2024 Reserved on: 5.8.2025 Date of Decision: 14.8.2025. Ludar Singh ...Petitioner Versus State of H.P. and others ...Respondents Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No. For the Petitioner : M/s Mohan Singh & Pawan K. Thakur, Advocates. For the Respondent No.1 : Mr. Lokender Kutlehria, Additional Advocate General. For Respondent No.2 : M/s Jiwan Lal Sharma & Ajay Thakur, Advocates. : None for respondents No.3 to 7, though, served. : Rakesh Kainthla, Judge The present revision is directed against the judgment dated 7.8.2024, passed by learned Additional Sessions Judge, Sarkaghat, District Mandi, H.P. (learned Revisional Court), vide 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2025:HHC:28284 which the revision filed by respondent No.2 (revisionist before learned Revisional Court) was allowed and the order dated 8.11.2023, passed by learned Sub Divisional Magistrate, Dharampur, District Mandi, H.P. (learned SDM) was set aside. (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 revision are that the applicants filed an application under Section 133 of Cr.P.C. for the removal of the nuisance. It was asserted that the applicants were the permanent residents of Village Bheri, P.O. Sajao Piplu, Tehsil Dharampur, District Mandi, H.P. Land bearing Khasra No. 2328 was recorded as Gair Mumkin Rasta in the ownership of the State Government, where the Gram Panchayat had constructed a road. 03 trees of Badare, 02 trees of Jamun, 04 trees of Chatraul, 01 tree of Kambal and 01 tree of Darhandu were causing danger to the public at large. These were obstructing the vehicles. Pruning of the trees was essential. Hence, a prayer was made to direct the Revenue Agency/Forest Department to inspect the spot and issue the orders for lopping/pruning. 3 2025:HHC:28284 3. Learned SDM called for the report of Naib Tehsildar and Forest Range Officer and held that the trees were causing a public nuisance and needed to be removed for the prevention of injury or damage to the life. Hence, he directed the applicants to take immediate steps for pruning of the branches of the trees by providing the funds to the Range Forest Officer, Dharampur or to prune the branches of the tree at their own level and hand over the wood of the trees to the Range Forest Officer, Dharampur under proper receipt. 4. Respondent No.2 (revisionist) filed a revision before the learned Additional Sessions Judge, Sarkaghat. Learned Additional Sessions Judge held that the trees growing on the land of the revisionist were pruned without hearing him. The order passed by the learned SDM suffered from material irregularity, and the same was ordered to be set aside. 5. Being aggrieved by the judgment passed by the learned Additional Sessions Judge, Sarkaghat (learned Revisional Court) the applicant, Ludar Singh, has filed the present petition, asserting that that revision filed before the learned Revisional Court was not maintainable and the question 4 2025:HHC:28284 of maintainability was not decided by it. It was wrongly held that the trees existed on Khasra No. 2328, whereas the authorities submitted the report that the trees existed on the Government land. The land was not properly demarcated. Therefore, it was prayed that the present petition be allowed and the judgment passed by the learned Revisional Court be set aside. 6. I have heard M/s Mohan Singh and Pawan Thakur, learned counsel for the petitioner/original applicant, Mr. Lokender Kutlehria, learned Additional Advocate General, for respondent No.1/State and M/s Jiwan Lal Sharma and Ajay Thakur, learned counsel for respondent No.2/original revisionist. 7. Mr. Mohan Singh, learned counsel for the petitioner, submitted that the revision preferred by a third person was not maintainable. learned Revisional Court did not record any finding regarding the maintainability of the revision. The learned SDM had passed the order after perusing the reports submitted by the Revenue and Forest authorities. Revisionist wrongly averred before the learned Revisional Court that the trees growing on his land were affected by the order passed by 5 2025:HHC:28284 the learned SDM. The report showed that the trees existed on the Government land. Therefore, he prayed that the present petition be allowed and the judgment passed by the learned Revisional Court be set aside. 8. Mr. Lokender Kutlehria, learned Additional Advocate General, for the respondent No.1/State, submitted that the learned SDM erred in passing the order directing the lopping/pruning of the trees standing on the land of the revisionist. This violates the principle of natural justice, and the learned Revisional Court was justified in reversing the order passed by the learned SDM. Therefore, he prayed that the present revision be dismissed. 9. Mr. Jeevan Lal Sharma, learned counsel for the revisionist, submitted that the disputes are pending between the petitioner, Ludar Singh and the revisionist. The petitioner had filed a false application before the learned SDM, and the learned SDM had erred in passing the order without hearing respondent No.2. The learned Revisional Court had rightly set aside the order passed by the learned SDM. There is no infirmity in the 6 2025:HHC:28284 order passed by the learned Revisional Court; hence, he prayed that the present petition be dismissed. 10. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 11. It was laid down by the Hon’ble Supreme Court in Malkeet Singh Gill v. State of Chhattisgarh, (2022) 8 SCC 204: (2022) 3 SCC (Cri) 348: 2022 SCC OnLine SC 786 that the revisional court does not exercise an appellate jurisdiction and it can only rectify the patent defect, errors of jurisdiction or the law. It was observed at page 207: - “10. Before adverting to the merits of the contentions, at the outset, it is apt to mention that there are concurrent findings of conviction arrived at by two courts after a detailed appreciation of the material and evidence brought on record. The High Court in criminal revision against conviction is not supposed to exercise the jurisdiction like the appellate court, and the scope of interference in revision is extremely narrow. Section 397 of the Criminal Procedure Code (in short “CrPC”) vests jurisdiction to satisfy itself or himself as to the correctness, legality, or propriety of any finding, sentence, or order, recorded or passed, and as to the regularity of any proceedings of such inferior court. The object of the provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well- founded error which is to be determined on the merits of individual cases. It is also well settled that while considering the same, the Revisional Court does not dwell 7 2025:HHC:28284 at length upon the facts and evidence of the case to reverse those findings. 12. This position was reiterated in State of Gujarat v. Dilipsinh Kishorsinh Rao, (2023) 17 SCC 688: 2023 SCC OnLine SC 1294, wherein it was observed at page 695: 14. The power and jurisdiction of the Higher Court under Section 397CrPC, which vests the court with the power to call for and examine records of an inferior court, is for the purposes of satisfying itself as to the legality and regularities of any proceeding or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept in such proceedings. 15. It would be apposite to refer to the judgment of this Court in Amit Kapoor v. Ramesh Chander [Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460: (2012) 4 SCC (Civ) 687: (2013) 1 SCC (Cri) 986], where scope of Section 397 has been considered and succinctly explained as under: (SCC p. 475, paras 12-13) “12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error, and it may not be appropriate for the court to scrutinise the orders, which, upon the face of it, bear a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored, or judicial discretion is 8 2025:HHC:28284 exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits. 13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in the exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much-advanced stage in the proceedings under CrPC.” 16. This Court in the aforesaid judgment in Amit Kapoor case [Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 : (2012) 4 SCC (Civ) 687 : (2013) 1 SCC (Cri) 986] has also laid down principles to be considered for exercise of jurisdiction under Section 397 particularly in the context of prayer for quashing of charge framed under Section 228CrPC is sought for as under : (Amit Kapoor case [Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 : (2012) 4 SCC (Civ) 687 : (2013) 1 SCC (Cri) 986], SCC pp. 482-83, para 27) “27. Having discussed the scope of jurisdiction under these two provisions, i.e., Section 397 and Section 482 of the Code, and the fine line of jurisdictional distinction, it will now be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but inherently impossible to state such principles with precision. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of 9 2025:HHC:28284 jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be: 27.1. Though there are no limits to the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly the charge framed in terms of Section 228 of the Code, should be exercised very sparingly and with circumspection, and that too in the rarest of rare cases. 27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion, and where the basic ingredients of a criminal offence are not satisfied, then the Court may interfere. 27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. *** 27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice. *** 10 2025:HHC:28284 27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records, but is an opinion formed prima facie.” 17. The revisional court cannot sit as an appellate court and start appreciating the evidence by finding out inconsistencies in the statements of witnesses, and it is not legally permissible. The High Courts ought to be cognizant of the fact that the trial court was dealing with an application for discharge. 13. This position was reiterated in State of Gujarat v. Dilipsinh Kishorsinh Rao, (2023) 17 SCC 688: 2023 SCC OnLine SC 1294, wherein it was observed at page 695: 14. The power and jurisdiction of the Higher Court under Section 397CrPC, which vests the court with the power to call for and examine records of an inferior court, is for the purposes of satisfying itself as to the legality and regularities of any proceeding or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept in such proceedings. 15. It would be apposite to refer to the judgment of this Court in Amit Kapoor v. Ramesh Chander [Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460: (2012) 4 SCC (Civ) 687: (2013) 1 SCC (Cri) 986], where scope of Section 397 has been considered and succinctly explained as under: (SCC p. 475, paras 12-13) “12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to 11 2025:HHC:28284 the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error, and it may not be appropriate for the court to scrutinise the orders, which, upon the face of it, bear a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored, or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits. 13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in the exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much-advanced stage in the proceedings under CrPC.” 16. This Court in the aforesaid judgment in Amit Kapoor case [Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 : (2012) 4 SCC (Civ) 687 : (2013) 1 SCC (Cri) 986] has also laid down principles to be considered for exercise of jurisdiction under Section 397 particularly in the context of prayer for quashing of charge framed under Section 228CrPC is sought for as under : (Amit Kapoor case [Amit 12 2025:HHC:28284 Kapoor v. Ramesh Chander, (2012) 9 SCC 460 : (2012) 4 SCC (Civ) 687 : (2013) 1 SCC (Cri) 986], SCC pp. 482-83, para 27) “27. Having discussed the scope of jurisdiction under these two provisions, i.e. Section 397 and Section 482 of the Code, and the fine line of jurisdictional distinction, it will now be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but inherently impossible to state such principles with precision. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be: 27.1. Though there are no limits to the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code, should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. 27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion, and where the basic ingredients of a criminal offence are not satisfied, then the Court may interfere. 27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction 13 2025:HHC:28284 or not at the stage of framing of charge or quashing of charge. *** 27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice. *** 27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records, but is an opinion formed prima facie.” 17. The revisional court cannot sit as an appellate court and start appreciating the evidence by finding out inconsistencies in the statements of witnesses, and it is not legally permissible. The High Courts ought to be cognizant of the fact that the trial court was dealing with an application for discharge. 14. It was submitted that a revision preferred by a third party was not maintainable, and the learned Revisional Court erred in entertaining the same. This submission is stated to be rejected. Section 397 of Cr.P.C. reads that the High Court or any Sessions Judge may call for and examine the record of any 14 2025:HHC:28284 proceedings before any inferior Criminal Court situated within his local jurisdiction for the purpose of satisfying himself as to the correctness, legality or propriety of any finding, sentence of order and as to the regularity of any proceedings of such inferior Court. The jurisdiction has been conferred upon the High Court or the Sessions Court to call for the record. This jurisdiction can be exercised at the instance of a person or suo moto. This is apparent from the fact that the legislature has used the words ‘by itself’. Further, Section 403 of the Code of Criminal Procedure provides that no party has a right to be heard either personally or by a pleader before any Court exercising the power of revision, but the Court may, if it thinks fit, hear any party personally or through a pleader. This also shows that the legislature intended that the jurisdiction is to be exercised by the Revisional Court after perusing the record, and a party at whose instance the record has been requisitioned does not have a right to address the Court. It was laid down by the Hon’ble Supreme Court in Honnaiah T.H. v. State of Karnataka, 2022 SCC OnLine SC 1001, that the third party has a right to invoke the revisional jurisdiction of the Court. It was observed: 15 2025:HHC:28284 16. The challenge to the maintainability of the revision at the instance of the appellant impugning an order passed during the pendency of the trial must also be rejected. The revisional jurisdiction of a High Court under Section 397 read with Section 401 of the CrPC, is a discretionary juris- diction that can be exercised by the revisional court suo motu so as to examine the correctness, legality or propri- ety of an order recorded or passed by the trial court or the inferior court. As the power of revision can be exercised by the High Court even suo moto, there can be no bar on a third party invoking the revisional jurisdiction and invit- ing the attention of the High Court that an occasion to ex- ercise the power has arisen. Holding a revision petition instituted by a complainant maintainable, Justice Santosh Hegde writing for this Court in K Pandurangan v. SSR Velusamy (2003) 8 SCC 625 observed: “6. So far as the first question as to the maintain- ability of the revision at the instance of the com- plainant is concerned, we think the said argument has only to be noted to be rejected. Under the provi- sions of the Criminal Procedure Code, 1973, the court has suo motu power of revision, if that be so, the question of the same being invoked at the in- stance of an outsider would not make any differ- ence because ultimately it is the power of revision which is already vested with the High Court statu- torily that is being exercised by the High Court. Therefore, whether the same is done by itself or at the instance of a third party will not affect such power of the High Court. In this regard, we may note the following judgment of this Court in the case of Nadir Khan v. State (Delhi Admn).” 15. Hence, the submission that the learned Revisional Court could not have exercised the jurisdiction under Section 497 at the instance of a third party cannot be accepted. 16 2025:HHC:28284 16. Learned SDM passed the following order on 9.2.2023:- “Case called. Sh. Anil Kumar Advocate, Vice Sh. S.K. Rathour, Advocate. Counsel for appellants is present. Write a letter to the Naib Tehsildar, Tihra and RO Dharamshala for a spot report and file to be listed for further hearing on 16.3.2023. Announced.” 17. It is apparent from the order that no conditional order was passed, and a simple notice was issued to the respondent. It was laid down by the Allahabad High Court in Mangal and others v. State of U.P. and others, 1977 Cri. L. J. 1036, that the passing of a conditional order is essential to initiate proceedings under Section 133 of the Cr.PC. It was observed: - 4. In my opinion, there is force in this submission. According to S. 133 (1) whenever a District Magistrate or a Sub-divisional Magistrate or any other Executive Magistrate specially empowered in that behalf by the State Government, on receiving the report of a Police Officer or other information and on taking such evidence (if any) as he thinks fit, considers that any unlawful obstruction or nuisance should be removed from any public place or from anyway, river or channel which may be lawfully used by public etc., he may make conditional order requiring the persons causing such obstruction to remove the same within the time stated in the order or in case they object to the order, they should appear before him or some other executive Magistrate subordinate to him at a time and place stated in the order and to show cause as to why the order be not made absolute. So far as the first order passed by the Sub- 17 2025:HHC:28284 Divisional Magistrate on 11-5-1976 is concerned. It was merely a direction that an order under Ss. 133 and 142 of the Code of Cr. A procedure be drawn upon. It is apparent that it was not the formal order under S.133, which had yet to be drafted and signed by him. Coming now to the actual notice issued to the applicant in pursuance of the aforesaid order made by the Magistrate, I find that it merely recites the reason for and the direction issued under S. 142 of the Code. It states that whereas an enquiry into a conditional order made under S. 133, Cr. P. C. is pending, and the information received by the Magistrate showed that an unlawful obstruction or nuisance had been made, which was causing imminent danger of a serious type to the public, and such danger had to be prevented; accordingly order under S. 142, Cr. P. C. requiring the applicant to demolish the said construction that was being made. On the face of it, this order does not partake in the nature of an order which is to be made under S. 133, Cr. P. C, It is not in the nature of a conditional order requiring the applicant either to do something within the time specified therein or to show cause. It appears that the Magistrate passed the order requiring the Officer to draw up an order under S. 133, Cr. P. C. and expected that the officer would draw up such an order for him and place the same for his signature. This, in my opinion, was not in accordance with the law. 5. Learned counsel for the opposite parties urged that in the notice issued to the applicant on the same date, it was mentioned that the applicant had encroached upon the public way by raising a wall. Accordingly, it cannot be denied that the learned Magistrate had formed an opinion that the obstruction by way of encroachment had been made on a public way and that it deserved to be removed. Requirement of S. 133, Cr. P. C., therefore, had been substantially complied with, and no interference in revision is called for. I am unable to accept this submission. In the first place, the notice copy of which has been filed as Annexure 3 cannot be equated with an order under S. 133 Cr. P. C. Aforementioned facts were recited merely to indicate the circumstances in which an order under S. 142, Cr. P. C. was being passed. In any case, even if the order dated 11th May 1976 is read along 18 2025:HHC:28284 with the notice prepared on 11th May 1976, it would still not comply with the remaining requirements of S. 133 of the Code of Cr. Procedure, namely that the applicants should have been told that they could appear before the court on the date and place fixed by it and file such an objection to the conditional order as they liked. There is no escape from the position that, in this case, no proper order under S. 133, Cr. P. C. has been issued. 6. At this stage, I would like to point out that in order to facilitate the passing of orders under S. 133, guidance has been provided in the shape of Form No. 20, appended to Sch. II of the Code of Cr. Procedure. The subordinate courts would do well to keep the form in mind while passing an order under S. 133 of the Code of Cr. Procedure. 18. In the present case, no conditional order was passed, and the proceedings could not have been initiated under Section 133 of Cr.P.C. without the conditional order. 19. Learned SDM sent the matter to the Revenue agency for inquiry and report, and proceeded to pass an order under Section 133(d). It directed the applicants to take the steps for pruning the branches of the trees. This was simply impermissible. Section 133(d) provides that when the tree is in such a condition that it is likely to fall and cause injury to any person, the Magistrate may make a conditional order requiring the person owning or possessing such tree to remove or support such tree or if he objects so to do, to appear before learned SDM or any Executive Magistrate subordinate to him to show cause 19 2025:HHC:28284 why the order be not made absolute. Therefore, the order was to be issued to the State, which was the owner of the trees, to remove/support the trees, and no order could have been passed directing the applicants to remove the trees or deposit the expenses for the removal of the trees. 20. Thus, it is apparent that learned SDM exercised the jurisdiction without issuing a conditional order, which is the basis for the proceedings under Section 133 of Cr.P.C. and thereafter erred in directing the applicants to remove the trees instead of the owner/possessor of the trees to remove it. Therefore, the learned Revisional Court was justified in interfering with the order passed by the learned SDM, and there is no infirmity in the judgment passed by the learned Revisional Court. 21. In view of the above, the present revision fails, and the same is dismissed so are the miscellaneous applications if any. (Rakesh Kainthla) Judge 14th August 2025 (Chander)