Magistrate must record evidence under Section 138 CrPC before making a conditional order under Section 133 absolute.

The petitioner has operated a factory, Merino Industries Ltd., since 1981

In 2005, Delhi Public School was established on adjacent land

During a fire safety inspection for the school, the Fire Department opined that the factory’s boiler posed an explosion risk to the school

Consequently, the Sub-divisional Magistrate (respondent no. 2) issued a conditional notice under Section 133(1) Cr.P.C. on 14.07.2022, directing the petitioner to remove the boiler

Although the petitioner filed replies on 25.07.2022 asserting statutory compliance and the prior existence of the factory, the Magistrate passed an order on 28.07.2022 abruptly directing the immediate shutdown of the boiler without waiting for the scheduled hearing date of 01.09.2022

The petitioner challenged this order and the entire proceeding via writ petition

1. Whether the Magistrate is mandated to record evidence under Section 138 Cr.P.C. after a party shows cause against a conditional order issued under Section 133 Cr.P.C.

2. Whether the impugned order directing the immediate closure of the boiler was legally sustainable given the lack of opportunity for the petitioner to adduce evidence

The Court applied the mandatory procedural requirements of Section 133 and Section 138 of the Code of Criminal Procedure (Cr.P.C.). Under Section 133(1), a Magistrate may pass a conditional order to remove a nuisance

However, once the aggrieved party appears and shows cause, Section 138(1) mandates that the Magistrate "shall take evidence in the matter as in a summons case"

making a conditional order absolute without recording evidence is a jurisdictional error [M/s Hindustan Glue and Gelatin Factory vs. State of U.P. and Jagdamba Prasad Tewari vs. State of U.P.]

the procedure under Section 138 is mandatory and not discretionary [Mool Chandra vs. State of U.P. and Krishan Lal Bhutani vs. Municipal Corporation Rohtak]

The Court reasoned that the Magistrate committed a procedural illegality by bypassing the mandatory requirements of Section 138 Cr.P.C.

While the Magistrate has the power to issue a conditional order under Section 133(1), the law requires a shift to a trial-like procedure once the respondent files an objection

Despite setting a future date for proceedings (01.09.2022), the Magistrate issued the final directive for closure on 28.07.2022 without conducting the summons-case inquiry or allowing the petitioner to lead evidence

The Court noted that the factory’s long-standing existence (since 1981) versus the school’s later establishment (2005) was a material fact that required proper judicial appreciation through evidence

The Court allowed the writ petition and set aside the impugned order... The matter was remanded to the concerned Magistrate with directions to decide the case afresh by providing both parties an opportunity to adduce evidence in accordance with the law within three months