ORDER P.V. Narayanan Nambiar, J.

1. The order in C.M.P. No. 14 of 1997 of the Sub-Divisional Magistrate, Tirur purportedly made under Section 138 (2), Cr.P.C. is challenged by the counter petitioner therein. As per the impugned order, the factory of the counter petitioner was ordered to be closed down within five days from the date of receipt of the order till a whole proof scientific effluent treatment system is established and functioned properly and it is got certified by the Senior Environmental Engineer of the Kerala State Pollution Control Board, Thiruvananthapuram and also obtaining the required licence from the Grama Panchayat and other concerned authorities, if any, after satisfying all the pre-requisite conditions for functioning the leather unit."

2. The leather factory of the revision petitioner is situated in his property measuring 1.90 acres. According to him, business is being conducted there for more than 60 years. The Thirunavaya Grama Panchayat has issued a licence for the functioning of the factory. Respondents 1 and 2 herein representing the Malinikarana Nirmarjana Committee filed certain complaints before various authorities including the Sub Divisional Magistrate, Tirur and the Kerala State Pollution Control Board, Regional Office, Calicut. On receipt of such complaints, the Sub-Divisional Magistrate issued Annexure-A order dated 26-10-1996 directing the petitioner to close down the business for five days from 30-10-1996 to 3-11-1996 "in order to implement the directions of the Pollution Control Board". The State Pollution Control Board, Regional Office, Calicut also directed the petitioner to take certain remedial measures to avoid pollution and to implement the scheme designed by M/s. Ganga Enviro Tech Engineers, Trichy within a period of 45 days. Annexure B is the copy of the letter dated 28-10-1996 issued by the Pollution Control Board. It is stated in the course of argument that the directions contained in Annexure B have been complied with.

3. Challenging Annexure A order of the Sub Divisional Magistrate, the petitioner filed O.P. No. 16922 of 1996 on 28-10-1996 to quash the Same and for other incidental reliefs. Annexure A order was stayed by this Court. The first respondent filed O.P. No. 16560 of 1996 on 22-10-1996 seeking to quash the licence issued by the Panchayat to the petitioner to run the factory and also for a writ of prohibition restraining the petitioner from carrying on the business and for other incidental reliefs. Both the. Original Petitions were disposed of together as per Annexure C judgment by which this Court issued a direction to the Revenue Divisional Officer to complete the proceedings initiated by him under Section 133, Cr.P.C. in accordance with the provisions contained in the Code after notice to the concerned parties.

4. Pursuant to the direction of this Court, notices were issued to both parties for hearing. Witnesses were examined, evidence was recorded, documents were marked and after hearing counsel on both sides, the Sub-Divisional Magistrate passed the impugned order.

5. Challenge against the impugned order is manifold. I shall briefly narrate the same hereun-der:

6. According to the petitioner, the impugned order which is passed under Section 138 (2), Cr.P.C. is absolutely illegal as it violates the provisions contained in the Code. It is his case that no final order could be passed unless it is preceded by a conditional order under Section 133, Cr.P.C. In the absence of a conditional order, the entire proceedings initiated by the Sub-Divisional Magistrate is bad and for that reason, the impugned order is also illegal and liable to be quashed. Counsel for the petitioner contended that the Sub-Divisional Magistrate can only make a conditional order absolute and cannot travel beyond the scope of the conditional order. Hence, it is submitted that even if Annexure-A order is treated as a conditional order the final order has traversed outside the limits of the conditional order offending the provisions of the Code as provided under Sections 133 to 138, Cr.P.C.

7. Yet another contention raised by the petitioner is that in the light of the provisions contained in the Water (Prevention and Control of Pollution) Act, 1974 (hereinafter referred to as the Act), the Sub-Divisional Magistrate is deprived of his jurisdiction to initiate proceedings under Sections 133 to 138, Cr.P.C. as there is an implied repeal of such provisions as far as water pollution is concerned. The pendency of the civil suit between parties in respect of the same subject matter is also highlighted by counsel for the petitioner who argued that when a civil Court is in cession of the matter, the Sub Divisional Magistrate should not have ventured to take a decision on the matter which is very much alive before the civil Court. Apart from these contentions, counsel also contended that the evidence and the documents relied on by the Sub Divisional Magistrate will not in any way help him to come to the conclusion that pollution is being caused as a matter of fact. Other incidental points were also argued by him.

8. On the other hand, counsel for respondents 1 and 2 argued that Annexure A order is akin to a conditional order under Section 133, Cr.P.C. He also argued that the point raised by the revision petitioner that Annexure A is not an order passed under Section 133 (1), Cr.P.C. was not accepted by this Court while disposing of O.P. No. 16922 of 1996 filed by him and that the Sub Divisional Magistrate cannot be found fault with for passing the impugned order as the same was passed in compliance with the direction of this Court issued as per Annexure C judgment. Other points were also raised by counsel.

9. The procedure to be adopted by the Sub-Divisional Magistrate or the Executive Magistrate in the case of public nuisance is contained in Sections 133 to 138, Cr.P.C. Section 133 of the Code deals with conditional order for removal of nuisance. The section specifically states that when a District Magistrate, or a Sub-Divisional Magistrate or other Executive Magistrate on receiving report of a police officer or other information, considers that nuisance should be abated, such Magistrate shall make a conditional order requiring the person causing such nuisance, within' a time to be fixed in the order, to remove the nuisance or if he objects to do so, to appear before' the Magistrate or some other Executive Magistrate subordinate to him at the time and place to be fixed by the order and show cause why the order should not be made absolute. If a person who is required to remove the nuisance does not obey the order, he shall appear before the SubDivisional Magistrate and show cause against the order. Section 136 of the Code deals with the consequence of his failing to do so. In case of denial of existence of a public right, an opportunity should be given to the person directed by the Sub-Divisional Magistrate, to prove by reliable evidence to support such denial. Section 138 of the Code provides that if a person against whom an order under Section 133 is made objects to the order, he shall appear and show cause against the order. The Magistrate shall take evidence in the manner as in a summons case and if the Magistrate is satisfied that the order, either as originally made or subject to such modification, is reasonable and proper shall be made absolute with or without modification. Section 476 of the Code says that the forms set forth in the second schedule, with such variations as the circumstances of each case require, may be used for the respective purposes therein mentioned. Form 20 which is contained in Schedule II is the form for issuing a conditional order.

10. A reading of Sections 133 to 138, Cr.P.C. with Form No. 20, will make it crystal clear that a direction should be issued by the Sub Divisional Magistrate to the person who is committing nuisance to abate the nuisance within the time fixed by the Court or appear before the Magistrate and show cause why the order should not be enforced. A date also is to be fixed for the appearance of the person. On a reading of Annexure A order, it is seen that it does not satisfy the requirements of a conditional order. As already stated, what is directed by the Sub-Divisional Magistrate is only to close down the factory for a period of five days from 30-10-1996 to 3-11-1996. The counter petitioner therein was also not asked to show cause why the order should not be made absolute. He was not directed to appear on a particular day to show cause against the order. As the requirements of Section 133, Cr.P.C. are not satisfied, Annexure A cannot be treated as a conditional order.

11. I am unable to accept the contentions raised by respondents 1 and 2 that Annexure A should be treated as a conditional order under Section 133, Cr.P.C. In the absence of satisfying the mandatory requirements of a conditional order, by no stretch of imagination can it be said that Annexure A is a conditional order passed in accordance with the provisions contained in Section 133, Cr.P.C. Respondents 1 and 2 also cannot take shelter under the judgment of this Court in O.P. Nos. 16560 and 16922 of 1996 as this Court never intended non-compliance of the provisions of the Code which are mandatory in nature. That apart, this Court directed the Revenue Divisional Officer to complete the proceedings initiated by him under Section 133, Cr.P.C. in accordance with the said provisions with notice to the parties who are already on record in that proceedings. There is nothing-to indicate in Annexure C judgment that this Court treated Annexure A as a conditional order passed under Section 133, Cr.P.C. This Court was also not obliged then to consider the validity of Annexure A order in the nature in which the Original Petitions were disposed of.

12. A final order under Section 138, Cr.P.C. can be passed only on the basis of a conditional order. A conditional order could be made absolute with or without modification. In' the absence of a conditional order, there is no question of passing a final order. The impugned order which is alleged to be the final order passed under Section 138 of the Code is patently illegal and opposed to the provisions contained in Sections 133 to 138 of the Code.

13. The Rajasthan High Court had occasion to consider a similar question in the decision reported in Mohd. Rafique v. State of Rajasthan, 1986 Crl. L.J. 44 and held that the magistrate passing an interim order directing a person to remove a factory within 7 days is not a conditional order under Section 133, Cr.P.C. This Court also held in the decision reported in T.P. Rajeevan v. Sub-Divisional Magistrate 1986 Cri L.J. 693 that an order passed by the Sub-Divisional Magistrate without complying strictly to the provisions contained in Sections 133 to 138 Cr.P.C. is illegal.

14. That apart, it is seen that the impugned order has gone beyond the scope of the conditional order. Only a conditional order can be made absolute with or without modification. What is contained in Annexure A order, even if it is treated to be a conditional order, is that the factory should be closed only for five days from 30-10-1996 to 3-11-1996. So, the order has died out on 3-11-1996 after which the conditional order has no life. The Sub-Divisional Magistrate cannot order permanent closure of the factory of the revisional petitioner which was neither suggested nor indicated in the conditional order. The Supreme Court in the decision reported in Gobind Singh v. Shanti Sarup AIR 1979 SC 143: (1979 Cri LJ 59) held that a final order passed beyond the scope of a conditional order is to be reversed and that a Magistrate dealing with proceedings under Section 133, Cr.P.C. cannot go beyond the scope of the conditional order. So, I am of the view that the impugned order is liable to be quashed as it offends the provisions of the Code.

15. It was also argued by counsel for the petitioner that the Sub-Divisional Magistrate has no jurisdiction at all to initiate proceedings under Section 133, Cr.P.C. as the provisions relating to water pollution contained under Section 133(1)(b) of the Code are impliedly repealed by the Act. This argument is based on Sections 4 (3), 17,20, 21,25, 27,28,29,33-A and 60 of the Act and the decision reported in Tata Tea Ltd. v. State of Kerala 1984 K.L.T. 645. It is not necessary for me to consider this question in view of the conclusion arrived at in the previous paragraphs that the impugned order is liable to be quashed for non-compliance of the provisions of the Code. Likewise, I am also not considering whether the impugned order is justified on facts and whether the nuisance has been abated by the petitioner taking appropriate steps pursuant to the direction of the Pollution Control Board. I am also not considering the question whether the pendency of the civil suit between parties will oust the jurisdiction of the Sub-Divisional Magistrate in taking steps under the Code.

16. In view of what is stated above, the impugned order is quashed. But, it is made clear that the Sub-Divisional Magistrate is free to initiate fresh proceedings in accordance with the provisions contained in Sections 133 to 138 of the Code, if circumstances so warrant. In the event of fresh proceedings being initiated by the Sub Divisional Magistrate, it must be done with due regard to the provisions contained in Sections 133 to 138 of the Code. The observations contained in this order should be borne in mind while passing a fresh conditional order and final order. Sufficient opportunity should also be given to the parties to adduce evidence in accordance with the provisions contained in the Code. The Sub-Divisional Magistrate should also take into account the various contentions raised by the revision petitioner and the respondents 1 and 2 before passing the final order.

The Crl. R.P. is allowed as above.