Judgment Anand Prasad Sinha, J. 1. This application is directed against the order dated 31.8.1982 passed incase No. 45 (M) 82 by Shri R.B. Singh, Executive Magistrate, Patna Sadar, in a proceeding under Sec.133 of the Code of Criminal Procedure (hereinafter referred to as the Code), by which the proceeding has been ordered to be dropped. 2. In the court below the petitioners were the members of the first party and the opposite party were the members of the second party. The petitioners had alleged that they were residents of Mohalla Lohanipur, P.S. Kadamkuan, ward No. 11, Circle No. 19, within the Patna Municipal Corporation Area. They were having their residential houses on both sides of the Railway Hunder Road, Pachkauri Sao Lane and Janardan Prasad Lane. They were tax payers. The Railway Hunder Road had been shown in the sketch map, which is annexure-1 to the petition filed before the learned Magistrate. The road starts from Rajendra Nagar Railway crossing westward parallel to the railway line and passes through Mohalla Lohanipur covering a length of not less than half kilometre. A large number of hutments and temporary structures have been constructed on both sides of the road. Just in the beginning of the road from east, there happened to be a slum area on the northern flank of the road inhabited by Harijans. 3. According to the allegations, the entire area and locality is covered by filth and the roads have been encroached. Stone chips meant for the repairs of the road have been lying uncared causing inconveniences and nuisance to the people of the locality, who are the petitioners. Various other acts of omissions have been alleged against the opposite party, who are the Patna Municipal Corporation and the different authorities of the said Corporation. On the basis of the petition filed by the petitioners, the learned Executive Magistrate by his order dated 12.1.1982 had passed an order drawing a proceeding under Section 133 of the Code against the member of the opposite parties and further had directed them to remove the aforesaid public nuisance by 5.2.1982 or to show cause as to why the order should not be enforced. The operative portion of the order dated 12.1.1982 passed by the Sub-divisional Magistrate, Sadar Patna, runs as follows: Hence I draw up proceeding under Sec.133 Cr.P.C. against the members of the opp. The operative portion of the order dated 12.1.1982 passed by the Sub-divisional Magistrate, Sadar Patna, runs as follows: Hence I draw up proceeding under Sec.133 Cr.P.C. against the members of the opp. party asking them to remove the aforesaid public nuisance by 5.2.82 or to show cause as to why the order should not be enforced. Put up on 5.2.82. Consequent to the notice, show cause had been filed on behalf of the opposite party and after hearing the parties, the proceeding has been ordered to be dropped by the impugaed order. 4. The learned Counsel appearing on behalf of the petitioners has submitted that the impugned order is bad in law as there has been no valid compliance of the procedure as laid down under Sec.138(1) of the Code. 5. I find sufficient force in this contention. From a perusal of the petition and also the impugned order of the learned Magistrate, it will appear that the various acts of omissions on the part of the opposite party has definitely given rise to a public nuisance as the encroachments, the un-hygienic conditions on account of ditches and accumulation of water and also at random lying of stone chips on the road without any attempt to take up the repairs of the road has made out a case that there existed public nuisance and the nuisance has definite link with the roads, which are public roads in nature. 6. It will appear that there is no denial of the existence of public road or right of the public for use of the roads. 7. In the circumstances, stated above, when once an order had already been passed drawing a proceeding under Sec.133 of the Code and in obedience to the order for showing cause, the opposite party had filed show cause, it was incumbent upon the learned Magistrate to take evidence in the matter as in summons cases. This has been laid down as being a mandatory provision under Sec.138(1) of the Code. That being so, any subsequent order, either making the rule absolute or discharging the rule passed earlier, shall only take place after taking of evidence, which has not been done in this case. Sec.138 of the Code runs as follows: 138. This has been laid down as being a mandatory provision under Sec.138(1) of the Code. That being so, any subsequent order, either making the rule absolute or discharging the rule passed earlier, shall only take place after taking of evidence, which has not been done in this case. Sec.138 of the Code runs as follows: 138. (1) If the person against whom an order under Sec.133 is made appears and shows cause against the order, the Magistrate shall take evidence in the matter as in a summons case. (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 8. It will appear that under Sec.138(2), while making the order absolute or making an order absolute with certain modifications, the learned Magistrate has again to be satisfied and this satisfaction is dependent upon the compliance of the provisions under Sec.138(1) of the Code making out a clear cut case that the material for satisfaction shall not be only the show cause, but the evidence available in accordance with the procedure laid down under Sec.138(1) of the Code. 9. It will also appear that under Sec.138(3) of the Code there is again an element of satisfaction and that is for terminating further proceedings in furtherance of the order passed under Sec.133 of the Code. This satisfaction is also dependant upon the material which can be said to be in the shape of evidence collected according to the procedure laid down under Sec.138(1) of the Code. 10. That being so, the learned Magistrate has definitely committed an error of law in dropping the proceeding which can only be said to be under Sec.138(3) of the Code without any compliance of the procedure laid under Sec.138(1) of the Code. It is all the more supported from the fact that absolutely there is no provision by which a Magistrate has been empowered to drop the proceeding simply on perusal of the show cause. It is all the more supported from the fact that absolutely there is no provision by which a Magistrate has been empowered to drop the proceeding simply on perusal of the show cause. Under the circumstances, the provision laid down under Sec.138(1) of the Code is mandatory in nature and any order passed without following the procedure laid under Sec.138(1) of the Code, cannot be said to be legal, valid and in accordance with law. 11. In the circumstances, the application is allowed. The impugned order is set aside and the case is remanded back to the court below for disposal in accordance with the observations made above.