MOHAMMAD RAFIQUE Vs. STATE OF RAJASTHAN

JUDGEMENT

(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.

(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.