IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application No. 221 of 2007 Sanjay Kumar and others …… Petitioners Versus State of Uttarakhand and others …… Respondents …….. Mr. Lok Pal Singh and Tapan Singh, Advocates for the petitioners. Mr. B.S. Parihar, Brief Holder for the State. Mr. Promod Tiwari, Advocate on behalf of Mr. Rajendra Singh Advocate for respondent no. 2. Hon’ble V.K. GUPTA, C. J. On 23.04.2005, a conditional order was passed by the Sub- Divisional Magistrate, Roorkee in terms of Section 133 Cr.P.C. directing that the thrashing machine be stopped forthwith or it be shifted to some other place and if respondent no. 2 objected to this order being passed, to appear before him on 02.05.2005 to clarify the position, to show cause and object to the said order being continued or confirmed. In the order dated 16.05.2005, it has clearly been mentioned that even though respondent no. 2 appeared, neither he filed any show cause nor did he object to the aforesaid order dated 23.04.2005 being made absolute. It is in this background that the order dated 23.04.2005 was made absolute on 16.05.2005. Aggrieved, respondent no. 2 filed a Revision Petition before the learned Sessions Judge, who while allowing the same, set aside the order dated 16.05.2005 passed by the Sub-Divisional Magistrate on the only ground that Section 138 Cr.P.C. was not complied with by the Sub- Divisional Magistrate in asmuch as the procedure prescribed in the said Section was not followed. Section 138 Cr.P.C. reads thus: “ 138. Procedure where he appears to show cause.- (1) If the person against whom an order under section 133 is made appears and show cause against the order, the Magistrate shall take evidence in the matter as in a summons-case. 2 (2) If the Magistrate is satisfied that the order, either as originally made or subject to such modification as he considers necessary, is reasonable and proper, the order shall be made absolute without modification or, as the case may be, with such modification. (3) If the Magistrate is not so satisfied, no further proceedings shall be taken in the case.” A bare look at sub-section (1) clearly suggests and reveals that the taking of the evidence as in a summons case has to be resorted to by the Executive Magistrate only if the person against whom the initial conditional order Under Section 133 Cr.P.C. has been made, appears and shows cause against the order. In the present case, since admittedly, even though respondent no. 2 had appeared, but because he had not filed any show cause nor had he filed any objection to the continuance or otherwise of the aforesaid conditional order, Section 138 Cr.P.C. was not at all attracted in this case. That being the case and because section 138 Cr.P.C. was neither attracted nor was it applicable in this case, the learned Sub-Divisional Magistrate was justified in relying upon the report of the Tehsildar and also his own physical inspection of the site in question. The order passed by him on 16.05.2005 did not, therefore, suffer from any illegality or irregularity. The learned Sessions Judge, Haridwar erred in allowing the Revision Petition of respondent no. 2 because he wrongly applied Section 138 Cr.P.C. to the facts of this case even though this provision of law was neither applicable nor attracted in view of the aforesaid facts and circumstances. This petition is allowed. The impugned judgment dated 10.01.2007 passed by the learned Sessions Judge, Haridwar is set aside and the order dated 16.05.2005 passed by the Sub-Divisional Magistrate is revived, affirmed and upheld with all the consequences. (V. K. Gupta, C. J.) 19.08.2008 A