S.N. Andley, J.
(1) The records of Criminal Revision No. 16 of 1970 filed by Balwant Singh, petitioner, in the Court of the Additional Sessions Judge, Kangra Division, against the order dated July 19, 1969, of Mr. Shamsher Singh, Magistrate first class, Chamba, purporting to have been passed under section 133 of the Code of Criminal Procedure have been submitted to this Court with the recommendation that the aforesaid order of the learned Magistrate be quashed and the learned Magistrate be directed to proceed in accordance with law. The said revision came to be filed in the circumstances set out hereinafter.
(2) On June 5, 1969, Gurdita Mal, Manager of Mandir Laxmi Narayanji, filed an application on behalf
(3) The learned Magistrate examined Gurdita Mal, the aforesaid manager, on June 6, 1969, and issued a notice to the petitioner to appear and show cause against the complaint. It does not appear that any conditional order as is contemplated by section 133 of the Code of Criminal Procedure was made by the learned Magistrate on June 6, 1969, when the notice was issued.
(4) In response to the notice, the petitioner appeared before the learned Magistrate on June 17, 1969 and showed cause. The petitioner admitted that the machines had been installed in the premises belonging to the temple but averred that they had been in existence for the last 15 years and that the area around the machines was not inhabited nor were the machines run in such a manner as to cause discomfort or inconvenience to the general public. The petitioner denied that cracks had appeared in the temple buildings as a result of the working of the machines. The petitioner further denied that the running of the machines was injurious to the health or physical comfort of the community.
(5) The learned Magistrate directed Gurdita Mal, the complainant, to produce his evidence on July 14, 1969. On this date and on July 15, 1969, the evidence of the complainant was recorded & concluded. The matter was then adjourned to July 24, 1969 for 'proper proceedings.' However, it appears that on July 19, 1969, the learned Magistrate took up the case at the oral request of the complainant and passed the impugned order in these terms :-
'CASEcame up today on the oral request of the applicant who says that the respondent be directed to stop carrying on the trade in the said premises because irreparable damage is being caused to the protected monument. Sufficient evidence about the temple being a protected monument has come on record and it is the duty of every law abiding citizen to help in the preservation of our ancient culture which would otherwise be lost to the nation. As such a prohibitory order u/s 133 Criminal Procedure Code . be issued to the respondent.
(6) File duly completed be consigned to the General Record Room. Announced in the open Court.'
(7) It seems to me that the learned Magistrate did not apply his mind at all to the provisions contained in Chapter X of the Criminal Procedure Code. I have looked into the file which contains a formal order dated July 19, 1969, which appears to be final in its terms, directing the petitioner to cease carrying on the said trade in the premises in question. The provision of law under which this formal order has been passed does not appear on the face of the order. It may, however, be useful to quote this formal order. It says:-
'WHEREASit has been made to appear to me that you are carrying on as owner the trade of wool and cotton ginning 9HCD/70-5 and rice thrashing in a portion of the premises of Temple Shri Damodar Lakshmi Narayan and the same is injurious to the public health by reason of being noisy and is also causing damage to the temple and Sanatan Dharam Hall which have been declared as ancient monument by the Archaeological Department, Government of India, and should be suppressed or removed to a different place;
(8) I do hereby direct and require you forthwith to cease carrying on the said trade at the said place and not again to carrying on the same.
(9) Given under my hand and seal of the Court this the 19th day of July, 1969.'
(10) It appears from the reference made to this Court that on July 19, 1969, the petitioner had filed an application before the Sessions Judge for transfer of the proceedings to some other Magistrate and on this date the Sessions Judge called for the comments of the learned Magistrate for September 19, 1969. It is stated in the reference that the contention of the petitioner was that the learned Magistrate had come to know of the order of the Sessions Judge and thereforee it was that he took up this case on July 19, 1969, although it was fixed for hearing only on July 24, 1969. With this contention this Court is not concerned because the relevant material is not ascertainable from the files.
(11) Chapter X of the Code of Criminal Procedure contains provisions in relation to public nuisances. Section 133 authorizes the Magistrate concerned to pass a conditional order for removal of nuisance upon information being laid in that behalf and on taking such evidence as the Magistrate may think fit. By this conditional order the Magistrate may require the person who is creating the public nuisance to desist from doing so. But if the person objects so to do or, in other words, fails to comply with such conditional order he is to appear before the said Magistrate or some other Magistrate as provided and move to have the order set aside or modified in the manner provided in the subsequent sections in this Chapter. Section 135 provides that the person against whom a conditional order is made may either perform the act directed by such order or, after appearing before the Magistrate concerned, apply to him to appoint a jury to try whether the order made is reasonable and proper. It is only if the person against whom such order is made does not perform such act or appear and show cause or apply for the appointment of a jury that he is made liable to the penalty prescribed in that behalf in section 188 of the Indian Penal Code and such order shall be made absolute as provided in section 136. It is, thereforee, clear that no penalty is provided for the disobedience of a conditional order unless it is made absolute for failure to appear or to make an application as provided by section 135. Section 137 enjoins upon the Magistrate upon cause being shown against the conditional order to take evidence in the matter as in a summons case and if he is satisfied that the order is not reasonable and proper, no further proceedings shall be taken in the case but if the Magistrate is not so satisfied, the conditional order shall be made absolute. Sections 138 and 139 provide for the constitution of and procedure before a jury if a jury is appointed on the application of a person against whom the conditional order has been made. Section 140 provides that after a conditional order has been made absolute, the Magistrate shall give notice of the same to the person against whom it is made and this notice shall further require such person to perform the act directed by the order within the time fixed and also notifying such person that he will be liable to the penalty provided by section 188 of the Indian Penal Code in case of disobedience. Sub-section (2) of section 140 lays down the consequences of the disobedience of the order.
(12) It seems to me that upon an application being made to the Magistrate under section 133 and upon his taking such evidence as he may think fit, a conditional order will be made if a prima facie case is established but if no prima facie case is established the application has to be dismissed. The first irregularity which the learned Magistrate committed was in not passing a conditional order if he was prima facie satisfied that the petitioner was guilty of committing the nuisance alleged. A mere notice to show cause without a conditional order is not contemplated by sub-section (1) of section 133 of the Code.
(13) As stated, the learned Magistrate did not make any conditional order on June 6, 1969, after examining Gurdita Mal. Since there was no conditional order, it is difficult to see what the respondent was called upon to show cause against in so far as Chapter X of the Code is concerned. Assuming that the learned Magistrate intended to record more evidence on behalf of the complainant which he did on 14th and 15th July, 1969 and that his order dated July 19, 1969 was intended to be the conditional order .contemplated by sub-section ( 1 ) of section 133 of the Code, it is not understood why he considered the file duly completed and ordered it to be consigned to the General Record Room without calling upon the petitioner to show cause against this order. However the matter is looked at, there can be no doubt that treating the file as having been duly completed and ordering it to be consigned to the General Record Room on July 19, 1969 is an illegality which the learned Magistrate has committed. If he passed the conditional order on July 19, 1969 he should have issued a show cause notice to the petitioner so that the petitioner could avail of the procedure and the other provisions contained in Chapter X of the Code.
(14) It is also clear that July 19, 1969 was not fixed for proceedings in the case which had been adjourned from July 15, 1969 to July 24, 1969. The petitioner did not have any notice for July 19, 1969 and yet the learned Magistrate purported to pass what according to him was a final order in so far as the commission of the alleged nuisance by the petitioner is concerned. Without saying anything about the motive of the learned Magistrate in taking the matter on July 19. 1969 when the date of hearing was July 24, 1969 it is enough to say that the impugned order is clearly in violation of the principles of natural justice.
(15) thereforee, both because of the non-compliance with the provisions of Chapter X of the Code and the violation of the principles of natural justice, the order dated July 19, 1969 treating the file as duly completed and ordering it to be consigned to the General Record Room as also the formal order of the same date containing the final order have been rightly recommended by the learned Sessions Judge for quashing. The recommendation of the learned Sessions Judge is .accepted. The learned Magistrate should treat the order dated July 19, 1969 as a conditional order as contemplated by sub-section (1) of section 133 of the Code and should in pursuance of that order take further proceedings as contemplated by Chapter X of the Code. Let the file be returned to the learned Sessions Judge for being remanded to the learned Magistrate for further proceedings.