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Judgment
T. Ch. Surya Rao, J.—The petitioner seeks to assail the order of the learned Mandal Executive Magistrate, Yellandu, dated 11.5.2001 passed u/s 133 of the Code of Criminal Procedure (''the Code'' for brevity).
Under the impugned order, the learned Magistrate directed the petitioner to close the business of poultry within two days from the date of receipt of that notice on the ground that the same was creating nuisance to the inhabitants of the New Bus Stand Area, Yellandu and also injurious to the Public health. The impugned order has been passed in flagrant violation of the procedure envisaged u/s 138 of the Code. That apart, Section 133 of the Code clearly confers the jurisdiction upon the District Magistrate or a Sub Divisional Magistrate. Of course, the jurisdiction can also be exercised by any other Executive Magistrate, but, he shall be specially empowered for that purpose by the State Government. The learned Magistrate has not made any conditional order requiring the petitioner to close down the business or to show cause as to why the conditional order shall not be made absolute. Then only, the procedure envisaged u/s 138 of the Code should be followed. The impugned order, therefore, suffers from vice of the illegality and is liable to be set aside.
In the result the Criminal Petition is allowed.