V S SANKARANARAYANAN Vs. SUB-DIVISIONAL MAGISTRATE CUM

JUDGEMENT

(1.) THIS petition filed to set aside the order passed by the learned Sub Divisional Magistrate cum Revenue Divisional Officer, Tenkasi in Na.Ka.A4/4190/2004 dated 04.08.2004 under Section 133 Cr.P.C.

(2.) THE learned counsel for the petitioner submits that the learned Executive Magistrate, without following the procedures contemplated and without application of mind, passed an order under Section 133 Cr.P.C. in the nature of final order. Under Section 133 Cr.P.C, only conditional order can be passed and after following procedures contemplated under Section 134 Cr.P.C to 140 Cr.P.C, the final order can be passed under Section 136 or 138 Cr.P.C.

(3.) SECTION 133 Cr.P.C. speaks of a conditional order in the circumstances mentioned in SECTION 133, Cr.P.C. itself and says that "the Magistrate may make a conditional order requiring the person causing such obstruction or nuisance to remove such obstruction or nuisance within a time to be fixed in the order" "of, if he objects so to do, to appear before himself or some other Executive Magistrate subordinate to him at a time and place to be fixed by the order, and show cause, in the manner hereinafter provided, why the order should not be made absolute."