Judgment B. P. Sinha, J. This reference under Section 438 of the Criminal Procedure, Code has been made by the Additional Judicial Commissioner of Chotanagpur, Eanchi to quash an order dated the 4th January, 1966 passed by Sri N. K. Sharma, Magistrate, First Class, Ranchi in a proceeding under Section 133 of the Code of Criminal Procedure. 2. A notice under Section 133 of the Code of Criminal Procedure was issued against the members of the opposite parties to cease carrying on trade of sale and purchase of cattle over certain plots situated to the south of the Government House, Ranchi. The preliminary order reads as follows: "Whereas it has been made to appear to me (from the evidence had in enquiry in case no. M-82/63 T. R 786/63) that you are carrying on the trade or occupation of sale and purchase of cattle in M. S. Plot Nos. 942, 944, 945, 946, 947 and 948 (situated to the South of Govt. House and Zakir Hussain Park, Ranchi) and in connection with the same you make noise by folk songs etc. day and night causing sleeplessness and disturbance in daily pursuits of life, causing deposit of cow-dung which rots and spreads bad odour injurious to health and makes swarms for mosquitoes and flies to thrive and you use a part of the land as easing ground and thereby make the whole area nasty and filthy which is injurious to health. It should, therefore, be removed. I do, hereby, direct and require you to cease carrying on the said trade or occupation at the said place and not again to carryon the same and to remove the said trade from that place where it is now carried on by 26.2.65 or to appear on the date and to show cause in this court as to why this order should not be enforced". 3. The opposite parties showed cause. After taking evidence and hearing the parties, the learned Magistrate passed a conditional order i. e. to say by that order he allowed the opposite parties to carryon the business on certain conditions. The order runs like this: "To keep the community of the locality in health and comfort it is necessary, all the same, to regulate this trade of cattle-keeping, for that I make the following orders : (a) The S. Ps. The order runs like this: "To keep the community of the locality in health and comfort it is necessary, all the same, to regulate this trade of cattle-keeping, for that I make the following orders : (a) The S. Ps. would make brick laid floor joint in cement at the rate of 6 ft. into 3ft. per cattle. (b) They would make drain pass by the border of this bricklaid floor for each Bathan so as to carry filth and dirty water through it. (c) They wou1d make the drain fall in a soakage pit. (d) Soakage pit would be one for each Bathan. (e) Cattle-dung shall be removed each morning and evening and kept in a big ditch 20' x 10' x 6' (which will be one for the entire number of Bathans and shall be located in middle of the Maidan). Dung shall be removed from the ditch on the morning of each Monday and Thursday by 10 a.m. and sent off on trucks or bullock-carts. (f) No cattle or cattle-Bathan, shall be kept within 5 yds. of the pitched roads. This would save passers-by from filth and dust and danger from cattle. (g) No cattle or cattle-Bathans shall be kept within a distance of fifty-five yds. from any house lying around the Maidan." 4. The learned Additional Judicial Commissioner of Chotanagpur, Ranchi has made a reference that the learned Magistrate had no jurisdiction to pass a conditional order under Section 137 of the Code of Criminal Procedure. In support of the reference, learned counsel for the petitioners has submitted that under Section 135 of the Code of Criminal Procedure, it was open to the opposite parties either to comply with the order or appear in accordance with such order and either show cause against the same, or apply to the Magistrate by whom it was made to appoint a jury to try whether the case is reasonable and proper. If a prayer is made for appointment of jury, the provisions of Section 138 have to be followed. When there is no such prayer and the opposite parties simply showed cause against the order, then the learned Magistrate had to pass order under Section 137 of the Code of Criminal Procedure. Under that Section the learned Magistrate could have made the order absolute or direct that no further proceeding should be taken in the case. When there is no such prayer and the opposite parties simply showed cause against the order, then the learned Magistrate had to pass order under Section 137 of the Code of Criminal Procedure. Under that Section the learned Magistrate could have made the order absolute or direct that no further proceeding should be taken in the case. He was not to pass any order modifying the preliminary order which was issued under Section 133 of the Code of Criminal Procedure. In support of his contention, learned counsel has relied upon three decisions, namely (1) A. I. R 1952 Calcutta 126 (Jethmull Sethia V. Aloke Ganguly). (2) A. I. R 1958 Allahabad 174 (Sadanand Tiwari V. State) and (3) A. I. R. 1964 Mysore 52 (The State V. Mahadevappa Goundappa Godi). These decisions are referred to in the order of reference. The Mysore decision is the latest one in which the Calcutta and Allahabad decisions have been discussed. 5. I think the contention of learned counsel is correct. Learned counsel for the other side has not disputed the correctness of this proposition of law. He has got no objection to the quashing of the order. 6. The result is that the reference is accepted and the order of the learned Magistrate dated 4th January, 1966 is quashed. Reference accepted.