An order passed under Section 133 Cr.P.C. for the removal of a nuisance is unsustainable and violates the principles of natural justice if the mandatory procedure of issuing a show cause notice and providing an opportunity of hearing under Section 138 Cr.P.C. is not followed.

Order

1. Since common question of law and facts are involved in both the petitions, hence, with the consent of counsel for both the parties, arguments have been heard together and these petitions are decided by this common order.

2. Both the petitions have been preferred against the impugned order dated 24.04.2013 passed by the Court of the Sub Divisional Magistrate, Sikar in Criminal Case No. 23/2013 under Section 138 of Cr.P.C. and a direction has been issued to the petitioners to remove the mobile tower from the subject land.

3. Learned counsels submits that before passing the aforesaid order, mandatory provisions contained under Section 138 Cr.P.C. were not followed, as no opportunity of hearing was provided to the petitioners & the petitioner were never served with any kind of notice. Counsels further submits that improper address of the petitioners was mentioned in the cause title of the complaint filed by the respondents under Section 133 Cr.P.C. They further submits that the above facts were brought into the notice of the Revisional Court when the order dated 24.04.2013 passed by the Sub Divisional Magistrate, Sikar was assailed before the Revisional Court i.e. the Court of the Additional Sessions Judge No.3, Sikar. They further submits that an interim order dated 16.05.2013 was noted in the ordersheet stating that compliance of Section 138 Cr.P.C. was not made.

4. Counsels further submits that when final arguments were heard by the Revisional Court, this fact that the petitioners have not been granted an opportunity of hearing and the mandatory provisions contained under Section 138 Cr.P.C. have not been followed with, was not taken into consideration and the revision petition submitted by the petitioners has been rejected.

5. Counsels further submits that the order dated 24.04.2013 has been passed by the Court of the Sub Divisional Officer, Sikar in utter violation of the principles of natural justice and no opportunity of hearing was provided to them and the order has been passed in their absence, without recording their evidence, hence, interference of this Court is warranted.

6. Per contra learned counsel appearing on behalf of the respondents oppose the arguments raised by the counsel for the petitioners and submits that notice in this regard was sent to the respondents and the respondents have chosen not to appear before the Court of the Sub Divisional Magistrate, hence, under these circumstances, the court concerned was left with no other option except to pass the order impugned. Therefore, just and proper order has been passed by both the Courts below which does not warrants an interference of this Court and these petitions are liable to be rejected.

7. Heard and considered the submissions made at the Bar and perused the material available on record.

8. Perusal of the record indicates that a complaint under Section 133 Cr.P.C. was submitted by the respondents against the petitioners for removing the mobile towers which are causing nuisance to the public. The aforesaid complaint submitted by the respondents has been allowed by the learned Court of the Sub Divisional Magistrate vide impugned order dated 24.04.2013 and a direction has been issued to the petitioners to remove the said mobile tower from the subject land.

9. Now, the question which remains for consideration of this Court is whether before passing the aforesaid order, the petitioners were awarded any opportunity of hearing or not, whether the provisions contained under Section 138 Cr.P.C. have been f