An order under Section 133 Cr. P. C. must comply with the requirements of the section and an injunction order under Section 142 Cr. P. C. can only be issued if there is a proper order under Section 133 Cr. P. C.

( 1 ) BY this application under Section 482 Cr. P. C. Mangal and four others pray that the proceedings initiated against them under Section 133 Cr. P. C. and the conditional order passed thereon dated 11th May, 1976 as also the direction issued under Section 142 Cr. P. C. on 15th May, 1976 be quashed.

( 2 ) ONE Babu Ram filed an application In the court of Sub-divisional Magistrate, Sikandrabad on 10th May, 1976 praying that proceeding under Section 133 Cr. P. C. be taken against the applicants who had made certain encroachment on the public way. Babu Ram put in another application under Section 142 Cr. P. C. mentioning that despite protest Mangal and others were continuing to make further construction and that they should be restrained from doing so. On both these applications the sub-divisional Magistrate made an order on 11th May, 1976 which read thus: Seen the papers and the eifidavit produced before me. Issue conditional! order Under Section 133 Cr. P. C. and injunction order Under Section 142 Cr. P. C. In pursuance of this order following notice under the signature of Link Officer was drawn up:

Whereas an inquiry info the conditional order issued by me today is pending and it had been made to appear to me that you Mangat son of Nathuwa Liley Charfa Rati Ram sons of Mangal all residents of village Pali, P. S. Dadri have encroached upon the public way by raising wall in the public way No. 758 In village Pali. P. S. Dadri towards the east and south of your Gher and such constructions as also the obstruction is attended with such imminent danger of Injury of a serious kind to the public as to render necessary Immediate measures to prevent such danger or injury. I do hereby under the provision of Section 142 of the Cr. P. C. direct and require you forthwith to demolish the said wall from the said public way; pending the result of the enquiry.

( 3 ) LEARNED Counsel for the applicant contends that the orders dated 11th May, 1976 are not in accordance with law and are liable to be set aside.

( 4 ) IN my opinion, there is force in this submission, According to Section 133 (1) whenever a District Magistrate or a Sub-divisional Magistrate or any other Executive Magistrate specially empowered in that behalf by the State Government, on receiving the report of a Police Officer or other information and on taking such evidence (if any) as he thinks fit, considers that any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel which may be lawfully used by public etc. , he may make conditional order requiring the persons causing such obstruction to remove the same within the time stated in the order or in case they object to the order, they should appear before him or some other executive Magistrate subordinate to him at a time and place stated in the order and to show cause as to why the order be not made absolute. So far as the first order passed by the Sub-Divisional Magistrate on 11-5-1976 is concerned it was merely a direction that an order under Sections 133 and 142 of the Code of Cr. Procedure be drawn upon. It is apparent that it was not the formal order under Section 133, which had yet to be drafted and signed by him. Coming now to the actual notice issued to the applicant in pursuance of the aforesaid order made by the Magistrate, I find that it merely recites the reason for and the direction issued under Section 142 of the Code, It states that whereas an enquiry into a conditional order made under Section 133 Cr. P. C. is pending and the information received by the Magistrate showed that an unlawful obstruction or nuisance had been made which was causing imminent danger of serious type to the public and such danger had to be prevented, accordingly order under Section 142 Cr. P. C. requiring the applicant to demolish the said construction was being made. On the face of it this order does not partake the nature of an order which is to be made under Section 133 Cr.