- (1.) THIS is a revision petition of one Babu Lal against the order of the First Class Magistrate, Fatehpur, dated the 15th September 1949, by which the applicant has been restrained from running his cinema in the town of Fatehpur during the pendency of an enquiry under Chapter X of the Criminal Procedure Code.
(2.) BHURAMAL Sunar complained in the court of the First Class Magistrate Fatehpur, against the applicant Babulal that the running of a cinema by the applicant amounted to a public nuisance inasmuch as the sound, smoke and vibration of the applicant's engine created the life uncomfortable in that particular locality. He further alleged that the cinema shows were responsible for the congregation of all bad characters, thereby making that locality unsafe. On this complaint, the learned Magistrate made an order under sec. 133 Cr. P. C. asking the applicant to stop running his cinema shows within 24 hours of the receipt of the order and further to remove all his machinery pertaining to the cinema within a week and to show cause why this order should not be made absolute on or before 10th September 1949. The applicant, after he was served with a copy of this order, appeared in the court of the Magistrate and contested the allegations of the complainant. The magistrate thereupon made another order on the 15th September 1949, whereby he relaxed the term relating to the removal of all the machinery pertaining to cinema but ordered the applicant not to continue the performance of the cinema shows, during pendency of the inquiry. The applicant has, therefore, come before this court. His principal contention is that the order of the learned Magistrate dated the 15th September 1949 is wrong in law, because under sec. 142 Cr. P. C. no such order could be made, there being absence of the prerequisites that are necessary for an order under that section. The opposite party has raised a preliminary objection that since the applicant has not moved the District Magistrate or the Sessions Judge in the first instance his application is not worthy of any consideration. 1921 Cal. 67 and 1924 All, 1 have been cited in support of this contention. As a general rule it is the practice of almost all the High Courts in India that revision petitions are not entertained unless the applicant moves the District Magistrate or the Sessions Judge, as the case may be, in the first instance, but this does not however, restrict the jurisdiction of the High Court in any way and in cases where revision petitions are once admitted it is considered proper to dispose them of on merits. This particular petition was admitted on the allegation of the applicant that the matter was very urgent and any delay in the disposal of this case meant severe financial loss to him. In 1933 All. 678 it has been held that after a revision petition has been admitted it is proper that it should be decided on merits. A similar preliminary objection was taken in that case, which was disallowed. 1941 Pat. 444 and 1940 Pat. 299 also support this view. The judgment in 1921 Cal. 76 is very brief and it is not plain in that case if the application had been admitted before that order was made. However, this question has not been discussed in that judgment and no assistance can be obtained therefrom. The Allahabad and Patna cases referred to above give a detailed discussion on this question. The preliminary objection raised by the opposite party is therefore rejected. Sec. 133 Cr. P. C. authorises a District Magistrate, a Sub-Divisional Magistrate, or a Magistrate of the First Class to make a conditional order requiring the person causing such obstruction or nuisance or carrying on such trade or occupation etc. etc. , as have been described therein within a time to be fixed in the order to remove the obstruction or nuisance or to desist from carrying on, or to move or regulate in such manner as may be directed,. such trade or occupation; etc. , or if he objects so to do, to appear before such Magistrate or some other Magistrate at a time or place to be fixed by the order and to move to have the order set aside. Under sec. 135 Cr. P. C. it is open to a person on whom an order under sec. 133 is served either perform within the time and in the manner specified in the order the act directed thereby or to appear in accordance with such order and either show cause against the same or to apply to the Magistrate by whom it was made to appoint a jury and to try whether the same is reasonable and proper. But if the continuance of the nuisance is considered dangerous and if an immediate action is deemed necessary an interim injunction can be made under sec. 142 Cr. P. C. It has not been shown in the present case that performance of the cinema shows by the applicant is likely to be dangerous or seriously injurious to the public and that an interim injunction under sec. 142 was necessary. The nature of the allegations contained in the complaint also do not justify such a view in the present case. The only point, therefore, which remains to be determined is whether the order of the Magistrate restraining performance of the cinema shows by the applicant can be enforced against the applicant even though he has appeared before the Magistrate and has chosen to contest the case. The language of sec. 135 Cr. P. C. which relates to execution of an order under sec. 133 makes it plain that performance of an order under sec. 133 is binding only upto the time and in the event the opposite party does not appear to show cause before such Magistrate. Similarly, sec. 136 also provides that if such person does not perform such act or appear and show cause or apply for the appointment of a jury as required by sec. 135 he shall be liable to the penalty prescribed in that behalf in sec. 188 IPC. etc. 1 he use of the word 'or'* in sec. 136 makes it evident that the penalties provided therein can only be applied if the person fails to perform such acts or in the alternative if he fails to appear before the court to show cause. It can therefore be concluded from the language of sections 133, 135 and 142 Cr. P. C. that during the pendency of an enquiry under Chapter X an interim, order under sec. 133 restraining or requiring performance of certain acts snail hold good only upto the time the opposite party appears before the Magistrate and shows cause or applies for an enquiry, unless such order is revived by means of an interim injunction under sec. 142 Cr. P. C. In the present case, as has been discussed above, no case has been made out calling for an immediate action under sec 142 Cr. P. C. The enforcement of an order under sec. 133 against the applicant restraining him from performing cinema shows after he has appeared and contested the case is not contemplated by the provisions of Chapter X Cr. P. C. The order of the Magistrate restraining the applicant from performing his cinema shows pending the conclusion of the enquiry cannot therefore be upheld and is, therefore, amended to this extent only that the applicant need not be restrained from running his cinema during the pendency of the proceedings under Chapter X, that are going on against him in the court of the First Class Magistrate at Fatehpur: .;