1973 P Cr (PLP)

3.It is contended by the learned counsel for the petitioners, firstly, that the learned Magistrate had not passed a 'conditional order, as he was required to do under section 133, Cr. P.C. and there was thus no order to be made 'absolute' under section 137, Cr. P. C. In support of this contention he cited some authorities. He submitted further that there is no 'imminent' danger to the health of the community and that an order under Chapter X of the Cr. P. C. could not be passed if the threat of injury to the health of the residents of locality was a remote one. In this connection he pointedly referred to the portion of the doctor's statement where he has stated that if the 'trade' is continued, the residents of the locality are likely to become ill 'in course of time'. He contended next that no evidence has been led to show that the residents of the locality were suffering from any 'physical discomfort. He also contended that the section was not intended to provide remedy to the complainant which he could seek in another forum i.e., in a civil Court.

4. I have considered the tendons raised by the learned counsel for the petitioners. It is evident from the statement of the Health Officer that the noxious fume emitted by the burning of the batteries in the furnaces run by the petitioners are highly injurious to the health of the residents of the locality and it can safely be assumed that they are also a source of serious 'physical discomfort' to the community, yet the impugned order passed by the learned Magistrate under section 137, Cr. P. C. cannot be sustained because he has omitted to follow the provisions of law relating to the passing of such orders. Section 133, Cr. P. C. requires that any Magistrate, who is informed of any trade being carried on by any one, should pass a 'conditional order' requiring the person carrying on such trade or occupation to desist from carrying it on or to regulate in any particular manner directed by him. Section 134, Cr. P. C. requires that such 'conditional order' should be served on the person concerned in the manner mentioned therein. Section 135, Cr. P. C. provides that the person against whom the 'conditional order' is made shall either act as directed by the said order or appear in accordance therewith and show cause against the same. Section 136, Cr. P. C. provides that if such a person does not act in accordance with the provisions of section 135, Cr. P. C., he shall be liable to the penalty prescribed in that behalf in and the 'conditional order' shall be made Section 137, Cr. P. C. provides that i such a person appears and shows cause against the 'conditional order', the Magistrate shall record evidence in the matter and if he is satisfied that the order is not reasonable and proper, he shall not take any further proceedings, but if he is not so satisfied, the 'conditional order' shall be made 'absolute'.

5. A reading of these sections goes to show that it is only a 'conditional order' which may be made absolute. Any order passed by the Magistrate under section 137, Cr. P. C. purport to be a final order which does not make a 'conditional order' absolute is not a valid order. It follows therefore that where no 'conditional order' is passed under section 133, Cr. P. C. the Magistrate cannot pass a final order. This view is supported by the following authorities cited by the learned counsel for the petitioners: - (1) Brahman Water Mills v. Mangladha Mal A I R 1928 Lah. 95. (2) Hayat Gul v. Gul Zamir P L D 1966 Pesh. 9. (3) The State v. N. A. Farooqi P L D 1969 Lah. 680. (4) Nalk Muhammad v. Yar Muhammad 1971 P Cr. L J 927. (5) Bahadur v. Mudhai P L D 1963 Lah.

269. The impugned order passed by the learned Magistrate is, therefore, liable to be set aside on this ground alone and I need not therefore discuss or give findings on the remaining contentions put forward by the learned counsel for the petitioners.

6. The result is that I accept the petition, set aside the impugned order and remand the case to the learned Magistrate to proceed according to law. Revision allowed.