[2026:RJ-JP:16490] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Miscellaneous (Petition) No. 863/2019 Bharti Hexacom Ltd (Airtel), K-21, Malviya Marg, C Scheme, Jaipur, Through Its Authorised Representative. ----Petitioner Versus 1. State of Rajasthan, Through PP. 2. Shri Dhanne Singh S/o Late Shri Isharam, R/o Gram Dadiya, Tehsil And District Sikar, Raj. 3. Shri Bhagwan Gurjar S/o Late Shri Kheeva Ram, R/o Gram Dadiya, Tehsil And District Sikar, Raj. 4. Shri Banwari Lal S/o Shri Devi Dutt, R/o Gram Dadiya, Tehsil And District Sikar, Raj. 5. Shri Bajrang Lal S/o Shri Hanmanaram, R/o Gram Dadiya, Tehsil And District Sikar, Raj. ----Respondents Connected With S.B. Criminal Miscellaneous (Petition) No. 377/2019 1. Bajranglal S/o Shri Hanmanaram(deceased), Through His Legal Heirs 2. Yashoda Devi W/o Late Shri Bajranglal, R/o Village Dadiya, Tehsil And District Sikar, Raj. 3. Satyanarayan S/o Late Shri Bajranglal, R/o Village Dadiya, Tehsil And District Sikar, Raj. 4. Ramesh Sharma S/o Late Shri Bajranglal, R/o Village Dadiya, Tehsil And District Sikar, Raj. 5. Sohani Devi D/o Late Shri Bajranglal, R/o Village Dadiya, Tehsil And District Sikar, Raj. 6. Jamoti Devi D/o Late Shri Bajranglal, R/o Village Dadiya, Tehsil And District Sikar, Raj. 7. Saraswati Devi D/o Late Shri Bajranglal, R/o Village Dadiya, Tehsil And District Sikar, Raj. ----Petitioners Versus 1. Dhanne Singh S/o Late Shri Ishar Ram, R/o Village Dadiya, Tehsil And District Sikar, Raj. [2026:RJ-JP:16490] (2 of 6) [CRLMP-863/2019] 2. Shiv Bhagwan Gurjar S/o Late Shri Khinvaram, R/o Village Dadiya, Tehsil And District Sikar, Raj. 3. Banwari Lal S/o Shri Devi Dutt, R/o Village Dadiya, Tehsil And District Sikar, Raj. 4. Manager, Airtel Mobile Company, Office in front of Court, Mahariya Bhawan, Tehsil and District Sikar, Raj. 5. SHO Police Station Dadiya, District Sikar. 6. Tehsildar, Tehsil Sikar. 7. State of Rajasthan, Through PP. ----Respondents For Petitioner(s) : Mr. Ajit Maloo Mr. Naveen Dhuven, Mr. Vishal Singh Jadoun, Head-Legal and Mr. Achyut Vitthal Agarwal, Manager- Legal for the company. For Respondent(s) : Mr. M.M. Ranjan, Sr. Adv. assisted by Mr. Rajat Ranjan with Mr. Rohan Agarwal Mr. Jitendra Singh Rathore, PP with Ms. Neha Goyal JUSTICE ANOOP KUMAR DHAND Order 18/04/2026 1. Since common question of law and facts are involved in both the petitions, hence, with the consent of counsel for both the parties, arguments have been heard together and these petitions are decided by this common order. 2. Both the petitions have been preferred against the impugned order dated 24.04.2013 passed by the Court of the Sub Divisional Magistrate, Sikar in Criminal Case No. 23/2013 under Section 138 of Cr.P.C. and a direction has been issued to the petitioners to remove the mobile tower from the subject land. [2026:RJ-JP:16490] (3 of 6) [CRLMP-863/2019] 3. Learned counsels submits that before passing the aforesaid order, mandatory provisions contained under Section 138 Cr.P.C. were not followed, as no opportunity of hearing was provided to the petitioners & the petitioner were never served with any kind of notice. Counsels further submits that improper address of the petitioners was mentioned in the cause title of the complaint filed by the respondents under Section 133 Cr.P.C. They further submits that the above facts were brought into the notice of the Revisional Court when the order dated 24.04.2013 passed by the Sub Divisional Magistrate, Sikar was assailed before the Revisional Court i.e. the Court of the Additional Sessions Judge No.3, Sikar. They further submits that an interim order dated 16.05.2013 was noted in the ordersheet stating that compliance of Section 138 Cr.P.C. was not made. 4. Counsels further submits that when final arguments were heard by the Revisional Court, this fact that the petitioners have not been granted an opportunity of hearing and the mandatory provisions contained under Section 138 Cr.P.C. have not been followed with, was not taken into consideration and the revision petition submitted by the petitioners has been rejected. 5. Counsels further submits that the order dated 24.04.2013 has been passed by the Court of the Sub Divisional Officer, Sikar in utter violation of the principles of natural justice and no opportunity of hearing was provided to them and the order has been passed in their absence, without recording their evidence, hence, interference of this Court is warranted. 6. Per contra learned counsel appearing on behalf of the respondents oppose the arguments raised by the counsel for the [2026:RJ-JP:16490] (4 of 6) [CRLMP-863/2019] petitioners and submits that notice in this regard was sent to the respondents and the respondents have chosen not to appear before the Court of the Sub Divisional Magistrate, hence, under these circumstances, the court concerned was left with no other option except to pass the order impugned. Therefore, just and proper order has been passed by both the Courts below which does not warrants an interference of this Court and these petitions are liable to be rejected. 7. Heard and considered the submissions made at the Bar and perused the material available on record. 8. Perusal of the record indicates that a complaint under Section 133 Cr.P.C. was submitted by the respondents against the petitioners for removing the mobile towers which are causing nuisance to the public. The aforesaid complaint submitted by the respondents has been allowed by the learned Court of the Sub Divisional Magistrate vide impugned order dated 24.04.2013 and a direction has been issued to the petitioners to remove the said mobile tower from the subject land. 9. Now, the question which remains for consideration of this Court is whether before passing the aforesaid order, the petitioners were awarded any opportunity of hearing or not, whether the provisions contained under Section 138 Cr.P.C. have been followed or not? Section 138 Cr.P.C. deals with the procedure of issuing a show cause notice to the person against whom an order under Section 133 Cr.P.C. is made, for ready reference, the relevant procedure as prescribed under Section 138 Cr.P.C. is reproduced as under:- “138. Procedure where he appears to show cause.—(1) If the person against whom an order [2026:RJ-JP:16490] (5 of 6) [CRLMP-863/2019] under section 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.” Perusal of the aforesaid provisions indicates that before passing any order under Section 133 Cr.P.C. an opportunity of hearing is required to be given to the other side against whom the order has been proposed to be passed 10. The cause title of the complaint submitted by the respondent under Section 133 Cr.P.C. indicates that proper address of the petitioners was not mentioned, hence, under these circumstances the petitioners were not served and they could not appear before the Court below and submit their reply and evidence. 11. Overlooking this material aspect of the matter the order impugned has been passed by the learned Sub Divisional Magistrate, this fact was noted and appreciated by the Revisional Court by passing an interim order dated 16.05.2023, wherein, it has been specifically mentioned that the provisions contained under Section 138 Cr.P.C. have not been followed. It appears that while passing the final impugned order dated 01.12.2018, the Revisional Court has forgotten to decide this particular issue and straightaway rejected the revision petition submitted by the petitioners. 12. Considering the overall facts and circumstances of the case, this Court is of the considered opinion that the impugned order dated 24.04.2013 has been passed by the Court of the Sub [2026:RJ-JP:16490] (6 of 6) [CRLMP-863/2019] Divisional Magistrate in violation of the principles of natural justice and the same has been passed without affording any opportunity of hearing to the petitioners, on this account alone the impugned order dated 24.04.2013 passed by the learned Sub Divisional Officer is not sustainable in the eyes of law and the said order is quashed and set aside. The consequential impugned order dated 01.12.2018 passed by the Revisional Court also stands quashed and set aside. 13. These petitions stands allowed. The parties are directed to appear before the Court of the Sub Divisional Officer on 14.05.2026 and on the subsequent dates it is expected from the learned Sub Divisional Magistrate to decide the complaint pressed by the petitioners, after providing due opportunity of hearing to both the parties and pass a reasoned order expeditiously, as early as possible, preferably within a period of three months. (ANOOP KUMAR DHAND),J Shivam/24-25