Judgment Surendra Narain Jha, J. 1. The only point canvassed in this application is as to whether an Executive Magistrate not specially empowered by the State Government to act under Section 133 of the Code of the Code of Criminal Procedure (for short the Code) can initiate a proceeding under Section 133 of the Code. 2. The short facts, which gave rise to this application, are that the opposite party filed a petition before the Sarpanch, Arajpur Gram Cutcherry, for starting a proceeding under Section 133 of the Code against the petitioners. The Sarpanch, after enquiry, sent the said petition to the court of the Sub- divisional Officer Madhepura. It has been averred in this application that on 8-7-1981, Shri M.L. Das, Executive Magistrate, Madhepura, started a proceeding under Section 133 of the Code against the petitioners and ordered issuance of notices to the petitioners to file their show cause. In pursuance of the said notice, the petitioners appeared and filed their show cause stating therein that the initiation of the proceeding by Shri M.L. Das, Executive Magistrate, was vitiated in law in view of the fact that Shri Das, was neither the Sub- divisional Magistrate nor was he specially empowered in this behalf by the State Government to act under Section 133 of the Code. The learned Sub-divisional Magistrate, after hearing the parties, ordered enquiry under Section 138 of the Code vide his order, dated 7-9-1981. 3. Learned Counsel, appearing on behalf of the petitioners, has submitted that the initiation of the proceeding under Section 133 of the Code by order dated 8-7-1981 passed by Shri M.L. Das, including the subsequent order passed by the learned Sub-divisional Magistrate in the said proceeding is illegal and vitiated in law, and, as such, it is fit to be quashed. 4. On the other hand, learned counsel, appearing on behalf of the opposite party, contended that the initial order dated 8-7-1981 passed by Shri M.L. Das merged in the order dated 7-9-1981 passed by the learned Sub-divisional Magistrate, and, therefore, irregularity, if any, that has been committed by Shri M.L. Das, has been cured by the subsequent order passed by the learned Sub- divisional Magistrate and, therefore, this Court should not intervene in the proceeding. 5. In order to appreciate the rival contentions of both the parties, it is necessary to refer to the provisions of Section 133 of the Code. 5. In order to appreciate the rival contentions of both the parties, it is necessary to refer to the provisions of Section 133 of the Code. Sub-section (1) of Section 133 lays down that whenever a District Magistrate or a Sub-divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government on receiving the report of a police officer or any other information and on taking such evidence (if any) as he thinks fit, considers that any unlawful obstruction or nuisance should be removed from any public place, may make a conditional order requiring the person causing such obstruction or nuisance to remove such obstruction or nuisance. 6. In order to appreciate the point raised by the learned counsel, appearing on behalf of the petitioners in this case, I am mainly concerned with the provisions of Sub-section (1) of Section 133 of the Code, which reads as follows: 133. (1) Whenever a District Magistrate or Sub-divisional Magistrate or any Executive Magistrate specially empowered in this behalf by the State Government, on receiving the report of a police officer or other information.... (under lined by me for emphasis) (a) that any unlawful obstruction or nuisance should be removed from any public place.... (b) to xx xx xx (f)such Magistrate may make a conditional order requiring, such person causing such obstruction or nuisance .... (i) to remove such obstruction or nuisance;.... (ii)to xx xx xx (vi)XX XX XX 7. From a bare reading of the aforesaid provisions, it is clear that in case of any public nuisance, the proceeding can be initated either by the District Magistrate or by the Sub-divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government. 8. From a perusal of the order dated 7-9-1981 passed by the learned Sub- divisional Magistrate, it is an admitted fact that Shri M.L. Das, an Executive Magistrate was not specially empowered by the State Government to act under the provisions of Section 133 of the Code. It was argued on behalf of the 1st party (opposite party) that on 8-7-1981, Shri Das was acting as Sub-divisional Magistrate, therefore, initial order passed by him was legal. On the other hand, it was agrued by the second party (petitioners) that the order was illegal. The learned Sub-divisional Magistrate, relying on a decision in Kanhai Raut and Ors. It was argued on behalf of the 1st party (opposite party) that on 8-7-1981, Shri Das was acting as Sub-divisional Magistrate, therefore, initial order passed by him was legal. On the other hand, it was agrued by the second party (petitioners) that the order was illegal. The learned Sub-divisional Magistrate, relying on a decision in Kanhai Raut and Ors. v. Budhan Mahto 1978 B.B.C.J. 136 held that the initial order, dated 8-7-1981 passed by Shri Das was not illegal and ordered enquiry under Section 138 of the Code. Being aggrieved by the aforesaid order, the present application has been filed by the 2nd party-petitioners before this Court. 9. Learned Counsel, appearing on behalf of the petitioners, has contended that the learned Sub-divisional Magistrate has misread the decision cited by both the parties. According to him, Mr. Das was not a successor-in-office of the Sub-divisional Magistrate and he was not empowered to take up any other matter except Sawalkhani i.e., the routine work. He referred to the decision in S.N.Dubey and Anr. v. Devi Kant Jha where a similar point came forconsideration before this Court and this Court held as follows: So Shri R.N. Maharaj had no jurisdiction to pass the impugned order,whether it be treated as an order under Section 192 or under Section 204, in exercise of his own delegated power. In the aforesaid case, a Full Bench decision in Krishna Deo v. Most. Budhni was taken notice of. A reference was made by a Division Bench to the Full Bench formulating two points: 1. Whether, in the fact and circumstances of the case, Second Officer Sri R. R. Prasad could pass an order under Section 203 of the Code of Criminal Procedure as he did on 9-11-1960, during the absence of the Sub-divisionalMagistrate? 2. Whether an order under Section 203 or 204 can be passed by only that Magistrate who has taken cognizance of the offence on a complaint under Section 200? While answering these two questions Mr. 2. Whether an order under Section 203 or 204 can be passed by only that Magistrate who has taken cognizance of the offence on a complaint under Section 200? While answering these two questions Mr. Justice Sahai, who delivered the judgment for the court, held: So far as the second question is concerned, the answer must be that it is the Magistrate taking cognizance of an offence on a complaint, or receiving the complaint when it is filed, who can pass an order under Sections 203 or 204 in respect of that case, but his successor-in-office, either temporary or permanent can also pass an order under those sections. From a bare reading of the Full Bench decision, it is settled that the successor-in-office, either temporary or permanent, can pass an order which can be passed only by the Sub-divisional Magistrate. Therefore, the point for consideration in the instant application is as to whether Shri Das was successor-in-office of the Sub divisional Magistrate on the date on which the initial order was passed by him. In the Division Bench case in Kanhai Rout (supra) a similar point came for consideration during the hearing of that case,a report was called for from the District Magistrate whether there had been a list of distribution of work of the gazetted officers at the Sub-divisional Level as contemplated in Section 17(1) of the Code. It appears that a report came vide letter no. 407, dated the 19th February, 1977 from the District Magistrate, which showed that Shri P. Aind, Deputy Magistrate, and two other Deputy Magistrates, namely, Shri S.N. Singh and Mr. Shri M. Baitha had worked in place of the Sub divisional Magistrate in his absence and were vested with necessary powers to do the work as the successor-in-office of the Sub divisional Magistrate. Therefore it was held in that case that Shri Aind could pass the order. From a reading of this decision as well, it is also clear that if a Magistrate is the successor-in-office, he can pass the order in absence of theSub divisional Magistrate. The Subdivisional Magistrate, in the instant case, on the basis of these decisions, held that the order passed by Shri Das in the capacity of his successor-in-office cannot be termed as illegal. The Subdivisional Magistrate, in the instant case, on the basis of these decisions, held that the order passed by Shri Das in the capacity of his successor-in-office cannot be termed as illegal. In my view, having considered the facts and circumstances of this case, the learned Sub-divisional Magistrate has not correctly applied the principle laid down in the case of Kanhai Raut (supra). Section 133 of the Code clearly lays down that only the District Magistrate or a Subdivisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government may, if he thinks fit, pass an order under Section 133 of the Code. From the order of the Sub-divisional Magistrate, it is admitted that Shri Das was not specially empowered to take action under Section 133 of the Code. Having considered all these facts minutely, I find force in the contention of the learned counsel for the petitioners, and, in my view, the initial order passed by Shri Das while acting as the Subdivisional Magistrate in absence of the Subdivisional Magistrate on 8-7-1981 is illegal and fit to be quashed as Shri Das was not the successor-in-office of the Subdivisional Magistrate, but was doing only routine work. 10. Besides, Section 461 of the Code deals with irregularities which vitiate proceedings. From a reading of the said section, it is clear that if any Magistrate, not being empowered by law in this behalf does any of the following things, namely: (a)to xx xx (g) (h) makes an order under Section 133 as to a local nuisance; (i)to xx xx (q)his proceedings shall be void. This provision also strengthens the view taken by me that the initial order is illegal and void and, thus, fit to be quashed. 11. In the result, for the reasons stated above, the application is allowed and the initial order dated 8-7-1981, passed by Shri M.L. Das Executive Magistrate, including the order of the Sub divisional Magistrate Madhepura, passed on 7-9-1981 in Miscellaneous Case No. 381 of 1981 is hereby quashed.