The Executive Magistrate, Sub Divisional Magistrate and or any Executive Magistrate specially appointed by the State for such purposes when he receives a report from the Police Officer or from any other sources by considering those evidences presented before it and if he thinks fit and considers that;
- Any lawful use of river or channel by the public is obstructed and nuisance is created.
- Any goods that is stored for the purpose of trade or occupation and is dangerous to the health and physical comfort of the habitat or general public which required to be removed.
- Construction of a building or disposal of any substances which might cause fire or explosion and that needed to be stopped.
- Any building, tent or structure or any tree which if fell would cause damages to the life and properties in the surrounding and those required to be removed so to stop from such damages.
- Any tank, well or excavation in the public place needed to be fenced to prevent any imminent danger to the public.
- Any dangerous animal required to be destroyed or confined so to prevent it from giving threat to the residents.
Such Magistrate can make a conditional Order directing the person, who is causing obstruction or nuisance to the river or channel, goods stored for trade or occupation causing health and physical comfort, construction of a building or disposing of substances which causes fire or explosion, building, tent or structure or tree which would cause damages, tank, well or excavation, owning or possessing of dangerous animal, within a stipulated time, he must;
- Remove obstruction or nuisance to the river or channel
- Remove the goods kept for trade or occupation causes health and physical comfort
- Stop construction of a building or disposing of substances which causes fire or explosion
- Remove the building, tent or structure or tree which would cause damages to the neighbourhood
- Fence tank, well or excavation
- Destroy or remove dangerous animal
Provided the Order directing a person objects it, he is required to appear before the concerned Magistrate or any other Magistrate as directed in the Order on such date, time and place fixed in the Order and show cause why the Order can never be made absolute.
The Order passed under this provision shall never be questioned in the Civil Court.
The Order shall be served on to a person as against the service of summons procedure laid down in the Cr.P.C. including that of publishing the notification at any conspicuous places noticeable by the person against whom it is served.
The person against whom the Order is issued must perform the manner as directed within the given time and his complying with the Order or challenging it by making his appearance before the authority is must.
Provided the person against whom the Order was issued did not comply with the Order or not appeared in person to respond, then the Order will become intact and the he shall be penalized under Section 188 of the IPC.
When a person against whom an Order was passed by the Executive Magistrate under Section 133 of Cr.P.C. for his abusing, obstructing and or causing damages to the general public their lawful use of any properties and the person appears before the Magistrate denies such act that was alleged against him and on that grounds an Order was passed by the Magistrate, then the Magistrate before proceed under Section 138 shall stay his Order till a competent Civil Court decides the dispute. Provided the Magistrate finds no reliable evidence submitted by the abuser then he shall proceeds under Section 138 of Cr.P.C. Even otherwise, the Magistrate shall not give denial choice to the abuser second time when he admits or refuses his abusement of lawful rights of the public properties.
The abuser appeared on the Order and challenging it in the Executive Magistrate Court, then the Magistrate has a choice to conduct the proceedings under Summons Case and he take evidences accordingly.
Provided the Magistrate finds it appropriate he can modify the Order or he can make the Order passed by him [previously] as absolute one depending on change in circumstances.
When the Magistrate is convinced that he can do nothing on the allegations he can stop the proceedings therein.
The Magistrate if thinks appropriate can order a local investigation by a person of calibre or brought in an expert and conduct examination of him. Both could be done when an inquiry is required to be taken by him under Section 137 or 138 of Cr.P.C.
If the Magistrate Orders local investigation by any person under Section 139, he must give that person a written instructions to guide him and specify who will bear the expenses on such local investigation. The report shall stand as evidence in the case. While an expert is brought for examination under Section 139 Cr.P.C. the Magistrate would decide on the costs payable to him.
The Magistrate upon making the Order passed by him absolute under Section 136 or 138 of Cr.P.C. he shall give notice to the abuser to obey the dictum given in the Order within the time specified in it, failing which, the same shall be treated as disobedience and he will be penalized under Section 188 of IPC.
If the abuser fails to perform the acts specified in the Order within the given time, the Magistrate would Order its performance and will recover the costs by sale of the property; movable or immovable situate in his jurisdiction and or call for its attachment if situate outside of his jurisdiction.
There shall be no Suit lies against the authorities who does it in good faith.
Provided the Magistrate while making an Order under Section 133 of Cr.P.C. sees imminent danger and / or cause serious injury to the habitat or to the general public may pass an Order of Stay against the abuser. In case of disobedience of the Stay by the abuser the Magistrate can do anything as he deems fit and appropriate to safeguard the interest of the victims. There shall be no Suit lies on any action taken by the Magistrate done in god faith.
The abuser shall never be allowed to repeat the abuses and he shall be cautioned accordingly by the Authorities passing an Order.