S. R. SINGH, J. ( 1 ) CRIMINAL Revision No. 1389 of 1993 and the other connected revision petitions aforestated, stem from identical orders of Sub-Divisional Magistrate, Hapur Distt. Ghaziabad under S. 138 of the Code of Criminal Procedure, 1973. Criminal Revision No. 1389 of 1993 is directed against the order dated 18-9-1993 of the Sub-Divisional Magistrate, Hapur District Ghaziabad, passed in Criminal Case No. 15 of 1992, thereby making an earlier order under S. 133, Cr. P. C. absolute. Similar orders followed in other conected revision petitions. These revision petitions as initially instituted, were cognizable by a Single Judge Bench but subsequently, as a result of the order dated 22-1-1997 passed in Civil Misc. Writ Petition No. 27299 of 1996 by Division Bench of this Court, these were directed to be listed alongwith the said writ petition and it is in this conspectus that the matter come up before the Division Bench. ( 2 ) THE arguments were canvassed on 22-7-1997, 24-7-1997, 31-7-97 and lastly on 4-9-97, when the Court, to avoid further protraction of the aforestated revision-petitions, closed the arguments and judgments reserved. ( 3 ) THE facts necessary to unfold the controversy involved in the case, briefly, stated, are that the Sub-Divisional Magistrate, Hapur, Distt. Ghaziabad, passed orders under S. 133, Cr. P. C. bearing on M/s. Hindustan Glue and Ziletin Factory and other factories carrying their venture at Rampur Road, Hapur in the district of Ghaziabad, to the effect that it had been brought to his notice that in the concerned factories, there was no arrangement prophylactic to proliferating air pollution being disgorged by the raw materials and water pollution being caused by effluent discharged by the factories were facing grave health hazards due to air pollution and water pollution so caused. The Sub-Divisional Magistrate, Hapur, accordingly bade the owners of the factories to close down the same and/or appear in the court on the date specified in the notice and show cause why the order be not made absolute. Cause was shown by the owners of the concerned factories but the learned Magistrate made the conditional order issued under S. 133, Cr. P. C. absolute vide orders impugned in these revision petitions. It is the validity and propriety of these orders which have come to be challenged in the revision petitions aforestated. Cause was shown by the owners of the concerned factories but the learned Magistrate made the conditional order issued under S. 133, Cr. P. C. absolute vide orders impugned in these revision petitions. It is the validity and propriety of these orders which have come to be challenged in the revision petitions aforestated. ( 4 ) THE learned counsel appearing for the applicants in the respective revision petitions urged that the learned Magistrate made the order under S. 133 absolute without affording opportunity to the applicants to lead evidence and also without observing in compliance the procedures laid down in Ss. 137 and 138, Cr. P. C. ( 5 ) SECTION 133, Cr. P. C. in so far as it is rele-vant to the controversy involved in the case, may be abstracted below. " (1) 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 other information and on taking such evidence, (if any) as he thinks fit, considers- (a ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (b) that the conduct of any trade or occupation or the keeping of any goods or merchandise, is injurious to the health or physical comfort of the community, and that in consequence such trade or occupation should be prohibited or regulated or such goods or merchandise should be removed or the keeping thereof regulated; or (c) to (f ). . . . . . . . . . . . . . . . . . . . . . . . . . . such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation, or keeping any such goods or merchandise, or owning, possessing or controlling such building, tent, structure, substance, tank, well or excavation or owning or possessing such animal or tree, within a time to be fixed in the order - (i ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (ii) to desist from carrying on, or to remove or regulate in such manner as may be directed, such trade or occupation, or to remove such goods or merchandise, or to regulate the keeping thereof in such manner as may be directed; or (iii) to (vi ). . . . . . . . . . . . . . . . . . . . . . . . . . . or, if he objects so to do, to appear before himself or some other Executive Magistrate subordinate to him at a time and place to be fixed by the order, and show cause in the manner hereinafter provided, why the order should not be made absolute. ( 6 ) A perusal of S. 133, Cr. P. C. would indicate that it is Cl. (b) of sub-section (1) which bears relevance to the facts of the present case in that the present was not a case of denial of "existence of any public right in respect of the way, river, channel or place" within the meaning of S. 137 of the Code of Criminal Procedure, 1973 and therefore, we converge of the considered view that the learned Magistrate was not required to follow the procedure comprehended by S. 137, Cr. P. C. The only question that begs answer, is whether S. 138 of the Code of Criminal Procedure, 1973 was attracted to the facts of the present case and whether the order passed in breach of the procedure prescribed by S. 138, Cr. P. C. can be sustained in law. Section 138 being germane to the question above, is quoted below-"138. (1) If the person against whom an order under S. 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. (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. "in the instant case the concerned factory owners, against whom the conditional orders u/s. 133, Cr. P. C. were made, did appear before the Magistrate and showed cause against the orders and, therefore, it was incumbent upon the Magistrate to "take evidence in the matter as in a summons case" as comprehended by sub-section (1) of S. 138, Cr. P. C. That the learned Magistrate did not take any evidence in the matter as in a summons case, was fairly conceded by the Govt. Advocate appearing for the State and concededly, no opportunity was provided to the applicants to give evidence in support of the reply submitted by them in response to the show cause notices issued to them under S. 133, Cr. P. C. and the procedure prescribed by S. 251, Cr. P. C. for trial of a summons case was not at all followed in observance by the learned Magistrate. It is thus manifestly clear that the order under S. 133, Cr. P. C. was made absolute u/s. 138 (2), Cr. P. C. without affording any opportunity of giving any evidence in the matter as in a summons case. We are of the view that sub-section (1) of S. 138 makes it obligatory on the Magistrate to take evidence in the matter as in a summons case, if the person against whom an order under S. 133, Cr. P. C. is made, appears and shows cause against the order and further that sub-section (2) of S. 138, Cr. P. C. enjoins a duty on the Magistrate tosatisfy himself,obviously after taking evidence in the matter as in a summons case, that the order, either as originally made or subject to such modifications as he considers necessary, is reasonable and proper and it is only after recording such satisfaction that the conditional order can be made absolute with or without modifications as the case may be. This, in the instant case has not been done by the Magistrate and, therefore, the impugned orders are unworthy of being sustained. This, in the instant case has not been done by the Magistrate and, therefore, the impugned orders are unworthy of being sustained. ( 7 ) IN the result, the revision petitions succeed and are allowed. The order impugned in each of the revisions is set aside but with a rider that this judgment will not prejudice the orders passed or to be passed by the High Court in the connected writ petitions which are still pending nor will it impinge upon the order passed by the Magistrate under S. 144, Cr. P. C. and those passed by the Authorities of Pollution Control Board. The Magistrate, it is further provided, will not be inhibited from proceeding and deciding the matter afresh in accordance with law and in the light of this judgment. Petition allowed. .