IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 20TH NOVEMBER 2009 / 29TH KARTHIKA 1931 Crl.MC.No. 3183 of 2009(A) --------------------------------- (AGAINST THE ORDER DT.28.08.09 IN CRL.M.C 261/09 OF THE SUB DIVISIONAL MAGISTRATE,THRISSUR) .................... PETITIONER(S): ------------------------ ABDUL KAREEM, MANAGING PARTNER, M/S. UNIVERSAL ROCK PRODUCTS, KILALOOR, VELUR VIA, THRISSUR DISTRICT. BY ADV. SRI.C.M.MOHAMMED IQUABAL RESPONDENT(S): ------------------------ 1. P.S.SUBRAMANIAN, PARAPPIL VEEDU, VELUR VILLAGE, TALAPPILLY TALUK, THRISSUR DISTRICT. 2. THE SUB DIVISIONAL MAGISTRATE, THRISSUR. BY PUBLIC PROSECUTOR MR.K.S.SIVAKUMAR FOR R2 ADV. SRI.P.CHANDRASEKHAR FOR R1 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 20/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.3183 OF 2009 ------------------------------------------ Dated 20th November 2009 O R D E R This Petition is filed under Section 482 of Code of Criminal Procedure to quash Annexure-8 order passed by the Sub Divisional Magistrate, Thrissur under section 142 of Code of Criminal Procedure, in M.C.261/2009, restraining working of quarry by name M/s.Universal Rock Products situated in Velur village. During the pendency of M.C.261/2009, Annexure-4 conditional order was passed under Section 133 of Code of Criminal Procedure on 7/8/2009 directing petitioner, the Managing Partner of M/s.Universal Rock Products to stop working of quarry or to appear and show cause why the conditional order shall not be made absolute. Petitioner was directed to appear before the Magistrate on 21/8/2009. According to the petitioner, he appeared and filed an objection showing the cause. Those facts are not disputed by first respondent. Annexure-8 order was thereafter passed on 28/8/2009 under Section 142 of Code of Crmc 3183/09 2 Criminal Procedure. Grievance of the petitioner is that the order was passed not along with Annexure-5 order, but twenty days thereafter and at that time petitioner was not heard and hence Annexure-8 order is to be quashed. 3. Learned counsel appearing for first respondent pointed out that Section 142 does not provide that notice is to be given to the person against whom an order is to be passed and therefore, there is no illegality in passing the order without notice. 4. Sub Section 1 of Section 142 of Code of Criminal Procedure provides that if a Magistrate making an order under Section 133 considers that immediate measures should be taken to prevent imminent danger or injury of a serious kind to the public, he may issue such an injunction to the person against whom the order was made, as is required to obviate or prevent such danger or injury pending determination of the matter. Sub Section 2 provides that in default of such person forthwith obeying such injunction, the Magistrate may himself use, or cause to be used, such means as he thinks fit to obviate such danger or to Crmc 3183/09 3 prevent such injury. 4. True, Sub Section 1 does not specifically provide that when an order is to be passed under the said Section, either notice is to be given to the party against whom the order is to be passed or he is to be heard. But the order contemplated under Sub Section 1, to be passed without notice is when the Magistrate passes an order under Section 133 and considered that immediate measures are to be taken to prevent imminent danger or injury. Then only an order without notice could be issued. That cannot be equated to a case where conditional order, as in this case was passed earlier, and later, when person against whom the conditional order was passed appeared and showed cause against making the conditional order absolute. Even though, Sub Section 1 of Section 142 does not provide that notice is to be given to the party, when the matter is pending consideration, before the Magistrate after appearance of the person against whom such an order is, passed, the Magistrate is necessarily to give notice to him and he is to be heard before passing such order. In such circumstances, when the order was passed without notice, Annexure-8 order can Crmc 3183/09 4 only be quashed. I do so. Petition is allowed. Sub Divisional Magistrate, Thrissur is directed to consider the question whether an order is to be passed under Section 142 of Code of Criminal Procedure after hearing the petitioner and first respondent. As it is submitted by the first respondent that there was an incident earlier of causing the death of three person, it is for the Magistrate to consider the aspect of issuing order without further delay. Petition is disposed. M.SASIDHARAN NAMBIAR, JUDGE. uj.