GOPAL KRISHNA SHARMA, J. - (1.) THIS petition u/s. 482, Cr. P. C , has been preferred against the judgment of the Sessions Judge, Tonk, dated 17th Jan. '85. The learned Sessions Judge passed this order in a revision petition filed before him against the order of the SDM, Tonk, dated 21st Feb. '83 and 15th March, '83, on applications u/s 133 & 142, Cr. P. C.
(2.) A preliminary objection was raised by Mr. Garg that this application u/s. 482, Cr. P. C. , is not maintainable. He argued that the petitioner had submitted a revision petition in the court of Sessions Judge, Tonk, which was dismissed vide his order dated 17th Jan. '85, and so, now a fresh application u/s. 482, Cr. P. C. before this Court, is not maintainable. I may like to mention here that the learned Sessions Judge, Tonk, seems to be a confused person. In his order, he has observed that the learned Magistrate passed the order u/s. 142, Cr. P. C. , which was a preliminary order, and final order should be passed by the learned Magistrate after inquiry. Those orders of the learned Magistrate being interim orders, no revision could lie against them. He has observed that in such cases, application u/s. 482, Cr. P. C, is maintainable in High Court, and he had no power to entertain such applications. However, inspite of these observations, the learned Sessions Judge disposed of the revision petition on merits, when the same rejected it. The learned Sessions Judge should not have disposed of the revision petition on merits. When the order of the learned Magistrate was an interim order, the learned Sessions Judge should have rejected the revision petition on the ground that no revision lie. So, the order of the learned Sessions Judge, is incorrect and he could not understand the correct position of law. The objection of Mr. Garg has no substance. This Court has ample power to entertain such matters u/s. 482, Cr. P. C. To understand this matter, I may refer that Motilal non-petitioner filed an application u/s. 133, Cr. P. C. before the SDM, Tonk, alleging that the petitioner was running an ice-factory, adjacent to his house. The factory used to store ammonia-gas in cylinders, and on account of not keeping the factory according to the rules, cylinders of ammonia-gas off and on used to burat which created nuisance and danger to the life of the neighbours, and that in the month of March. '81, one gas-cylinder had burst, resulting in damage of the wall of the house of Motilal, and as the gas spread in the lane, it injured a number of persons, and further that, again on 7th Feb. '83, one more gas-cylinder of ammonia-gas had burst, as a result of which, one room of the house of Motilal, was damaged completely and three persons of the family of petitioner Mohammad Raflque also had died. It was further alleged in the said application that as this had created a great nuisance and keeping gas-cylinders would create danger to the life of the persons residing nearby, it was prayed that the factory be removed from the site and also the store of the ammonia-gas be removed from there. After the presentation of this application by Motilal, the learned Magistrate, on 21st Feb. '83, passed the order on the order-sheet, which says that the application was presented before him; opposite party be summoned by notice; and that the application be registered and put up on 1st Mar. '83. Along with the application u/s. 133, Cr. PC, petitioner Motilal had also filed another application u/s. 142, Cr. P. C. On 21st Feb. '83, when the application u/s. 133, Cr. P. C. was ordered to be registered by the learned Magistrate, he also passed an order on the other application filed u/s. 142, Cr. P. C. filed by Motilal. After giving some facts, the learned Magistrate passed an interim order to the effect that Mohammad Rafique be directed to remove the factory, known as "gandhi Ice Factory", from the Gali Naswaron-ki, Qafila, Tonk, within 7 days, failing which, the factory would be removed with the help of police. If there was any objection to that order, the opposite party, Mohammad Rafique was ordered to be present on 1st March, '83, in court. On 1st Mar. '83, Mohammad Rafique appeared before the learned SDM, and submitted his reply. The learned SDM, after hearing both the sides, on 15th Mar. '83, passed the order that the conditional order passed by him on 21st Feb. '83, is made absolute till the disposal of the application u/s. 133, Cr. P. C. The (petitioner, therefore, has challenged both the orders passed by the learned SDM on 21st Feb. & 15th Mar. '83. The case of Mohammad Rafique is that he was running the ice-factory at the same premises since 1964, and that Municipal Board in the year 1965 granted him licence for running the said factory. Thereafter, the Collector, Tonk also granted him a licence for this factory. Then in the year 1982, Mohammad Rafique moved an application to the Municipal Board, Tonk, and he was granted sanction to use 30 Hp engine in the factory. So, according to Mohammad Rafique he was running this factory after obtaining Licence and permission from the authorities concerned. He denied that any cylinder containing ammonia-gas had burst as alleged by Motilal. According to him, a pipe through which gas used to pass, had burst once resulting in leakage of ammonia- gas. It was also alleged by him that his children were playing near that pipe, and so, on account of the leakage of the ammonia-gas, there had been casualties of his children. But, it was denied that any loss had occurred to Motilal on account of the said leakage of the gas. Mr. Mehrish has argued that u/s. 133, Cr. P. C, the learned SDM had to pass a conditional order for removal of the nuisance. The specimens of the forms in which orders have to be passed, are given in Schedule-2. The relevant form is form No. 20. So the learned Magistrate ought to have passed the conditional order u/s. 133, Cr. P. C. in the form as provided in schedule-2. The present order of the learned Magistrate dated 21st Feb. '83, is not in accordance with the form as prescribed in schedule-2. Apart from this, Mr. Mehrish argued that the prayer in the application filed u/s. 133, Cr P. C. was that working of the factory be stopped, as it had created nuisance, and also the store of the ammonia-gas and its distribution, be removed from the factory premises. Similar was the prayer in the application moved u/s. 142, Cr. P. C. So, according to the application filed u/s. 133, Cr. P. C, the prayer was only to stop the working of the factory and to remove the storage of the ammonia-gas. It was not the prayer of non-petitioner Motilal that the factory be removed from the premises where it was running. So, the learned SDM passsed such an order which was not the prayer of Motilal non-petitioner. The order dated 21st Feb. '83, regarding removing (he factory from the premises within 7 days, is such unorder, for which there was no prayer on behalf of the non-petitioner Motilal. So, this order is an illegal order. The learned SDM would not have passed such an order. He could pass only a conditional order as prescribed in the Form 20 of Schedule-2-Simi-larly, while passing the final order on 15th March, '83, the learned SDM confirmed the order dated 21st Feb. '83, and made that order absolute. That order dated 21st Feb. '83, was not a conditional order, but, more or less, an order for removing the factory from the premises within 7 days. That order cannot be termed as conditional order. But, that was a final order, giving time to remove the factory within 7 days. The order of removal of the factory is the final order. Vide order dated 15th Mar. '83, he said that the order dated 21st Feb. '83, was confirmed and made absolute. The order dated 15th Mar. '83, needs no confirmation which was a final order.
(3.) AFTER perusing the order dated 21st Feb. '83, passed by the learned SDM, I have no hesitation to say that this order was not a conditional order as it should have been passed u/s. 133, Cr. P. C. U/s. 142, Cr. P. C. an injunction order can be passed during the pendency of the application u/s. 133, Cr. P. C. While passing the order u/s. 142, Cr. P. C. , there should have been an order u/s. 133, Cr. P. C. If the Magistrate who passes an order u/s. 133, Cr. P. C. considers that immediate measure should be taken, and there is imminent danger or injury of serious nature to the public, he may issue such an injunction to the per son against whom the order was made, and he be required to obviate or prevent such danger or injury pending determination of the matter. So, there should be some conditional order u/s. 133, Cr. P. C, and if thereafter, the Magistrate feels that there is some imminent danger, he is certainly empowered to pass such order against that person requiring him to prevent danger or injury to public till the disposal of the application u/s. 133, Cr. P. C. In the present case, the order dated 21st Feb. '83 which is said to be a conditional order u/s. 133, Cr. P. C, is not a conditional order as required under this section. The learned SDM has passed the final order without hearing the application u/s. 133, Cr. P. C. Apart from this, it was not the prayer of the applicant Motilal to remove the factory from the premises, but, the prayer was that the working of the factory be stopped till the disposal of the application and the storage of gas be removed from the premises. He did not pray that the factory be shifted from that place. So, the learned Magistrate has gone one step further, and he passed the order which was never prayed for by Motilal applicant. So, this order is a wrong and illegal order which is not in accordance with S. 133, Cr. P. C. So, it cannot be maintained. He should have passed some conditional order to the effect that use of ammonia-gas in the ice-factory should be in such a manner, so as not to endanger life of the public and the persons residing nearby, or any order of the like nature as he deemed fit to have passed. But, no order should have been passed finally without hearing the other party, and that too, u/s 133, Cr. P. C. There was no stage of passing any injunction order u/s. 142, Cr. P. C. The order dated 15th Mar. '83, is no order and cannot be said to be an order under the provisions of S. 142, Cr. P. C. In Tarachand vs. The State of Rajasthan (l) a similar matter of ice-factory was before this Court, and the said case was decided by Kasliwal, J. In that case, a petition was filed before the SDM, Kishangarh Bass u/s. 133, Cr. P. C. The learned SDM passed an order u/s. 133, Cr. P. C. closing the factory. The petitioners in that case, were given "show - cause" notice. In their reply they pleaded that it was an industrial area in which there were other factories having their business. The Municipal Board in that case, after making all inquiries, giving a notice to the opposite side, granted a certificate to the petitioner, for running the factory. They had invested a huge amount, and a tank of ammonia-gas was fixed in a proper manner. But. on account of some technical difficulties, the gas leaked. But the leakage was retained and no loss had occurred to any person. According to the petitioners the complainant was mala fide as civil litigation was going on in between the two parties, and prayed that the proceedings u/s. 133, Cr. P. C. should be dropped against them. The learned SDM did not agree with the petitioners, and passed the order dated 13th Jan. '81, holding that he was entitled to pass such conditional order, and was also entitled to hold inquiry on merit. That petition was also u/s. 482, Cr. P. C, and after considering all the aspects, Kasliwal, J. allowed the petition and held that the order closing the factory, itself was wrong and illegal. I have also given my thoughtful consideration to the present matter. The case of Tarachand and another (Supra) is fully applicable to the present case, which was also a matter relating to an ice-factory. According to Motilal applicant, there was imminent danger on account of storage of ammonia-gas for the purpose of ice-factory. But, without going into the merits and hearing both the sides, the learned SDM passed the order dated 21st Feb. '83 as a conditional order u/s. 133, Cr. P. C, for which, I have already mentioned above that that is not a conditional order, which is an illegal order. Show-cause notice was given to Mohammad Rafique of the application u/s. 133, Cr. P. C. and along with the said notice, a copy of the application was also sent to the opposite-party. But, a copy of the order dated 21st Feb. '83 was not sent to him. In this order, Mohammad Rafique was asked to remove the factory within-7 days, from the premises, failing which, it was to be removed with the help of police. He was not given notice of this order. It is very strange that the learned SDM passed the order asking him to remove his factory within 7 days from the premises without intimating him of this order. Then, after hearing both the sides, he passed the order dated 15th Mar. '83, by which, he made the order dated 21st Feb. '83, absolute. This order is also a wrong and illegal order. The learned Magistrate should have passed a conditional order that till the disposal of the application u/s. 133, Cr. P. C. , the opposite party, i. e. , Mohammad Rafique should run the factory in such a manner so as not to endanger the life of other persons or create public nuisance. He should have directed to keep ammonia-gas in such a safe condition that it might not leak out in future till the disposal of the application. So, the order regarding shifting the factory from the premises, is an illegal and incorrect order, which cannot be sustained. ;