JUDGMENT 1. - The petitioners, who were running Harish Ice Factory at Ward No 8 of Khairthal District Alwar, have filed this petition challenging the order passed by Sub-Divisional Magistrate, Kishangarh, Bas District Alwar dated 29th July, 1980 and 13th January 1981 whereby their ice factory has been closed and inquiry is being held under Sec. 133 2. Certain business-men residing in the vicinity of the Ice Factory in question submitted a complaint that the ice factory in question was creating public nuisance in the locality and the police after making investigation submitted a report in the court of Sub-Divisional Magistrate for taking action under Section 133 Cr. P C. The learned Magistrate on 29th July, 1980 passed a conditional order for closing the ice factory with immediate effect and to show cause, if any against the aforesaid order on 4th August, 1980. 3. The petitioners, in pursuance to the aforesaid show cause notice submitted a detailed reply on 11th August 1980 pleading that it was an industrial area in which there were other factories doing their business. The Administrator, Municipal Board, Khairthal after making all the inquiries and giving notice and inspecting the site had granted a certificate on 29th October, 1979 to the petitioners for running the factory. A registration certificate was also granted by the District Industries Officer and the petitioners thereafter obtained a loan of Rs. 50,000/- from the State Cr. P C. Government and started the factory by investing their amount to the extent of Rs. 1,00,000/-. It was further pleaded that the tank for amonia Gas was fixed in a proper manner but on account of some technical difficulty the gas leaked out on 25th July, 1980 but the leakage was stopped immediately and no loss occasioned to any person Certain pleas regarding the fact that the complaint was hied malafide and a civil litigation was also going on between the parties, were also taken. The petitioners, therefore, prayed that the proceedings under Section 133 maybe dropped against them. The learned Sub-Divisional Magistrate after hearing the petitioners passed an order on 13th January, 1981, holding that he was entitled to pass such conditional order and was also entitled to hold inquiry on the merits. 4. Aggrieved against the aforesaid two orders the petitioners have filed this revision petition under Section 397 read with Section 482 Cr. P.C. 5. The learned Sub-Divisional Magistrate after hearing the petitioners passed an order on 13th January, 1981, holding that he was entitled to pass such conditional order and was also entitled to hold inquiry on the merits. 4. Aggrieved against the aforesaid two orders the petitioners have filed this revision petition under Section 397 read with Section 482 Cr. P.C. 5. The main contention raised by the learned counsel for the petitioners is that the learned Sub-Divisional Magistrate should not have passed an order closing the factory itself but could have passed an order for abatement of the nuisance in the conditional order. The learned Sub-Divisional Magistrate had no jurisdiction to close the factory itself under Section 133 Cr. P.C. and he could have done so only after considering the objections raised by the petitioners and after taking evidence in this regard. 6. Learned Public Prosecutor, on the other hand, has contended that the Sub-Divisional Magistrate was empowered under Section 133 Cr. P.C to remove the nuisance if he considered it to be so imminent that it was affecting the health and security of the residents of the area. Reliance is placed on Municipal Council Ratlam v. Vardhichand and others in which their lordship of the Supreme Court observed as under:- "Sec. 133 Cr. P C. is categoric, although reads discretionary. Judicial discretion when facts for its exercise are present, has a mandatory import. Therefore when the Magistrate has before him, information and evidence, which disclose the existence of a public nuisance and on the materials placed, he considers that such unlawful obstruction or nuisance should be removed from any public place which may be lawfully used by the public he shall act. Thus, his judicial power shall, passing through the procedural barrel, fire upon the obstruction or nuisance, triggered by the jurisdictional facts. The Magistrates responsibility under Sec 133 Cr. PC. is to order removal of such nuisance within a time to be fixed in the order. This is a public duty implicit in the public power to be exercised on behalf of the public and pursuant to a public- proceeding. Failure to comply with the direction will be visited with a punishment contemplated by Section 188 I.P.C. Therefore, the Municipal Commissioner or other executive authority bound by the order under Section 133 Cr. This is a public duty implicit in the public power to be exercised on behalf of the public and pursuant to a public- proceeding. Failure to comply with the direction will be visited with a punishment contemplated by Section 188 I.P.C. Therefore, the Municipal Commissioner or other executive authority bound by the order under Section 133 Cr. P.C. shall obey the direction because disobedience, if it causes obstruction or annoyance or injury to any persons lawfully pursuing their employment, shall be punished with simple imprisonment or fine as prescribed in the Sec. The offence is aggravated if the disobedience tends to cause danger to human health or safety. The imperative tone of Section 133 Cr. P.C. read with the punitive temper of Section 188 I.P.C. make the prohibitory act a mandatory duty." 7. I have given my careful consideration to the arguments advanced by the learned counsel for both the parties. In my opinion the Magistrate under Section 133 Cr. P C. while issuing a conditional order can give a direction for removal or abatement of the nuisance in case he considers it so imminent and urgent even at the time of issuing a show cause notice under Section 133 Cr. PC It is of course necessary that the party against whom such order is passed shall be heard thereafter and if he appears to show cause against the order then the Magistrate shall take evidence in the matter as in summons case under Section 138 Cr. P.C Thereafter the Magistrate shall pass a final order under sub Sec. (2) of Section 138 Cr.P.C. In the present case the imminent danger as regards the public nuisance was that amonia gas was coming out of the factory on 25th July, 1980. In these circumstances an urgent order could have been passed abating this nuisance of Amonia gas and it was not proper for the sub-divisional Magistrate to have passed an order closing the factory itself. The petitioners in their reply had taken the stand that due to some technical difficulty the Amonia gas leaked out of the factory on 25th July, 1980, but the same was stopped immediately, and the Magistrate should have taken this fact into consideration before passing any order of closing the factory itself. The petitioners in their reply had taken the stand that due to some technical difficulty the Amonia gas leaked out of the factory on 25th July, 1980, but the same was stopped immediately, and the Magistrate should have taken this fact into consideration before passing any order of closing the factory itself. Prima facie from the reply submitted by the petitioners it transpires that a permission was granted to run this factory by the Municipality and other concerned authorities and the petitioners were running this factory since 26th June 1980. It is alleged to be an Industrial Area where other persons are also running their factories and industries. 8. In view of all the circumstances the order closing the factory itself was wrong and illegal. The orders elated 29th July, 1980 and 13th Jan, 1981 are therefore, modified to the extent that the petitioners would be allowed to run their factory provided they make proper arrangement that no Amonia gas comes out from their factory so as to Cause imminent danger and nuisance to the residents in the locality. The learned Magistrate already holding an inquiry on the merits of the case He is permitted to do so. He shall pass a final order as required under Section 138 Cr. P.C. after recording evidence of the parties as expeditiously as possible. 9. The application filed by the petitioners, therefore, allowed with the observations as indicated above.Revision allowed. *******