Section 133 CrPC orders are unsustainable without a preliminary order and inquiry under Section 138.

Opposite parties Nos. 2 and 3 initiated proceedings under Section 133 CrPC before the Sub-Divisional Magistrate, Madhupur, concerning an alleged obstruction to a public way.

The Magistrate called for a report from the Circle Officer, who reported that no road was obstructed. Despite that report, the Magistrate ordered removal of the obstruction, relying on earlier reports, without first making a conditional order under Section 133 CrPC or providing an opportunity to adduce evidence after the petitioner filed a show-cause response.

The petitioner’s criminal revision was dismissed without addressing those objections.

He then sought relief under Section 482 CrPC.

Whether the Magistrate’s order under Section 133 CrPC was sustainable when no preliminary or conditional order had been made and the procedure under Section 138 CrPC had not been followed

Whether the revisional court’s dismissal was sustainable when it did not address the petitioner’s grounds concerning those procedural omissions

Under Section 133 CrPC, a Magistrate must draw up a preliminary or conditional order before proceeding to require removal of a public nuisance; that order is a sine qua non for initiating the statutory process.

Where the person proceeded against appears and shows cause, Section 138 CrPC requires the Magistrate to take evidence as in a summons case.

In C.A. Avarachan v. C.V. Sreenivasan & Another, 1995 Supreme (SC) 415, the Supreme Court held that failure to draw up the preliminary order and follow Section 138 CrPC renders the Magistrate’s final order unsustainable.

The record contained no preliminary order under Section 133 CrPC, and, although the petitioner filed a show-cause response, the Magistrate gave the parties no opportunity to adduce evidence under Section 138 CrPC.

These omissions violated mandatory procedural requirements and, applying C.A. Avarachan, made the Magistrate’s order unsustainable.

The revisional court noted the petitioner’s objections but failed to address them, instead dismissing the revision without resolving the alleged procedural defects; its order was therefore also unsustainable.

and remitted Criminal Misc. Case No. 370 of 2015 to the Sub-Divisional Magistrate, Madhupur, for a fresh order in accordance with law.