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Judgment
The criminal petition itself is disposed of with the consent of parties on merits.
The petitioner challenging the order passed in MC No.3 of 1998. The said order is passed u/s 133 Cr.PC. Section 133 Cr.PC empowers passing of conditional order for removal of nuisance by the District Magistrate or Sub-Divisional Magistrate or any other Executive Magistrate specially empowered by the State Government. However, Section 133 Cr.PC empowers only passing of orders in accordance with the provisions of the said section. The section in terms says that the Magistrate may make a conditional order requiring the person causing such alleged obstruction or nuisance etc., to remove the same within a time to be fixed in the order. It is only after passing of such order that further proceedings have to be taken by serving of the said order on the concerned person and person against whom such order is made has to comply the said order within the time specified. Consequence of his failure to comply the order has to be dealt with in accordance with Section 136 Cr.PC. It is thus imperative that some time has to be prescribed in the order passed u/s 133 Cr.PC so that the person is given opportunity to carry out the same. In the instant case no time is prescribed or fixed in the order. The order is in the following words :
"This order will come into force with immediate effect."
It will thus be seen that no time was fixed in the order, it is impossible to accept the argument advanced by the learned Counsel for the respondents that the order was to take effect immediately and the time impliedly was to expire with immediate effect. If such a construction is to be given, the purpose of Section 133 Cr.PC would become meaningless. In other words, in effect, there will be no time fixed for carrying out the order and the person against whom the order is passed has no opportunity to comply with the order. It is true that the order passed suffers from the vice of non-compliance of technicality. But the technicality is not meaningless or purposeless. The Magistrate before passing the said order is undoubtedly required to pass the orders in terms of the statutory requirements.
Learned Counsel for the respondents contends that a show-cause notice was issued u/s 135 Cr.PC to the petitioner. According to him, issuance of such notice gives sufficient opportunity to the petitioner to comply with the order within the time stated in the notice. We are not concerned as to what was stated in the notice. The petitioner has challenged the order passed u/s 133 Cr.PC. The notice comes into picture only after passing of the order.
Having regard to the mandatory requirement prescribed u/s 133 Cr.PC, there is no doubt whatsoever that the order passed in unsustainable as it does not comply with the requirement of fixing of time within which the order is required to be complied. The order is therefore set aside. It is made clear that the order is set aside only because it is not in compliance with requirement of Section 133 Cr.PC inasmuch as it failed to prescribe the time within which it has to be complied. It is open for the Magistrate to pass appropriate orders in accordance with Section 133 Cr.PC afresh and proceed further in accordance with law.
The criminal petition is allowed accordingly.