IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI MONDAY, THE 1ST SEPTEMBER 2008 / 10TH BHADRA 1930 Crl.Rev.Pet.No. 4513 of 2007(D) ------------------------------- MC.40/2002 of OF THE SUB DIVISIONAL MAGISTRATE, MUVATTUPUZHA .................... REVN. PETITIONER: COUNTER PETITIONERS 1 & 2 ------------------------------------------- 1. PAREED, AGED 47 YEARS, S/O.SAIDU MUHAMMED, VALIYAPARAMBIL, AMBUNADUKARA, KIZHAKKAMBALAM VILLAGE PIN - 683 561. 2. KOYAN, AGED 45 YEARS, S/O.KHADER, KOLLAMKUDI HOUSE, AMBUNADUKARA, KIZHAKKAMBALAM VILLAGE, PIN - 683 561. BY ADV. SRI.M.A.ABDUL HAKHIM SRI.JYOTHISH.J.KALLINGAL RESPONDENTS: PETITIONERS, COUNTER PETITIONERS 3, 4 & STATE ---------------------------------------------------------- 1. MAMMU ALI, VALIYAPARAMBIL, AMBUNADUKARA, KIZHAKKAMBALAM VILLAGE, PIN - 683 561. 2. SAYED MOHAMMED, ANCHUPARAMBIL, AMBUNADUKARA, KIZHAKKAMBALAM VILLAGE, PIN - 683 561. 3. MAITHEEN IBRAHIM, VALIYAPARAMBIL, AMBUNADUKARA, KIZHAKKAMBALAM VILLAGE PIN - 683 561. 4. HYDROSE, PILAPPILLIL HOUSE, AMBUNADUKARA, KIZHAKKAMBALAM VILLAGE, PIN - 683 561. 5. MYTHEEN AIMU, VALIYAPARAMBIL HOUSE, AMBUNADUKARA, KIZHAKKAMBALAM VILLAGE, PIN - 683 561. Crl.Rev.Pet.No. 4513 of 2007 -2- 6. PADMANABHAN SURENDRAN, PARAKLAT HOUSE, AMBUNADUKARA, KIZHAKKAMBALAM VILLAGE. PIN 683 561. 7. PADMANABHAN SASINDRAN, AMBUNADUKARA, KIZHAKKAMBALAM VILLAGE, PIN - 683 561. 8. AIMUKUNJU MAKKAR, MANNUPARAMBIL HOUSE, AMBUNADUKARA, KIZHAKKAMBALAM VILLAGE PIN-683 561. 9. SUHARA HYDROSE, MANNUPARAMBIL HOUSE, AMBUNADUKARA, KIZHAKKAMBALAM VILLAGE. PIN - 683 561. 10. MARAKKAR MOIDU, MUNDAYIL HOUSE, AMBUNADUKARA, KIZHAKKAMBALAM VILLAGE PIN - 683 561. 11. SULAIMAN, MANNUPARAMBIL HOUSE, AMBUNADUKARA, KIZHAKKAMBALAM VILLAGE. PIN - 683 561. 12. KHADEEJA VALIYAPARAMBIL HOUSE, AMBUNADUKARA, KIZHAKKAMBALAM VILLAGE, PIN - 683 561. 13. KOCHUNNI, MANNUPARAMBIL HOUSE, AMBUNADUKARA, KIZHAKKAMBALAM VILLAGE PIN 683 561. 14. R.V.KAIMAL, AALAKKA PARAMBIL HOUSE, AMBUNADUKARA, KIZHAKKAMBALAM VILLAGE PIN - 683 561. (Respondents Nos.6 and 7 are recorded as the legal heirs of respondent No.14 as per order dated 14.3.2008 in Crl.M.A.2169/2008) 15. SURESH KUMAR, AALAKKAPARAMBIL HOUSE, AMBUNADUKARA, KIZHAKKAMBALAM VILLAGE PIN - 683 561. 16. ASHRAF, MANNUPARAMBIL HOUSE, AMBUNADUKARA, KIZHAKKAMBALAM VILLAGE PIN - 683 561. (Deleted from the Crl.R.P. as per order dated 14.3.2008 in Crl.M.A.2170/2008) 17. HABEEB RAHMAN, PUTHEDATH HOUSE, AMBUNADUKARA, KIZHAKKAMBALAM VILLAGE. PIN 683 561. Crl.Rev.Pet.No. 4513 of 2007 -3- 18. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.M.V.JOY FOR R17 SRI.T.M.ABDUL LATHEEF FOR R.4 SMT.MIJI JOHN FOR R.4 PUBLIC PROSECUTOR SRI.C.M.KAMMAPPU SRI.E.R.VENKATESWARAN FOR R1,2,3,8,11&12 SRI.R.SREEHARI FOR R1,2,3,8,11&12 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.GIRI, J ------------------- Crl.R.P.4513/2007 -------------------- Dated this the 1st day of September, 2008 ORDER Petitioners 1 and 2 in M.C.No.40/2002 on the files of the Sub Divisional Magistrate, Muvattupuzha, have preferred this revision under Section 401 of Cr.P.C. Apparently counter petitioner No.1 has later withdrawn from the proceedings, he having filed a not pressed memo in that regard. The order under challenge is therefore considered only at the instance of counter petitioner No.2. 2. Pursuant to a complaint filed by the respondents herein alleging that the counter petitioner and three others have obstructed a thodu which starts from the 6th spout of Ambunadu Sub Canal and that the same would result in the destruction of agriculture, a report was called for by the Sub Divisional Magistrate, from the Village Officer, Kizhakkambalam. It seems that the Village Officer had submitted a report affirming that portions of the canal from the 6th spout of the Ambunadu Sub Canal have been filled up and it has resulted in the obstruction Crl.R.P.4513/2007 2 of the thodu and free flow of water. A similar report was filed by the Assistant Engineer of the PVIP Section. 3. Based on the reports, Sub Divisional Magistrate initiated proceedings under Section 133 of Cr.P.C. Notice was issued to the counter petitioners and a conditional order was passed directing them to remove the obstruction or show cause why the order should not be made absolute. 4. The counter petitioners entered appearance and filed objections. They denied the existence of any canal through their property. They specifically took objection to the report of the Village Officer and the Assistant Engineer. It was pointed out by them that there had been no notice of the local inspection by the Village Officer and had there been such notice, they would have been in a position to point out that no portion of the canal runs through their property and they are not responsible for the alleged obstruction. Crl.R.P.4513/2007 3 5. Evidence was let in by the counter petitioners 1 and 2 as CPWs 1 and 2. One contention raised in this regard was that the counter petitioners have their property on the western side of the canal and the padasekharam lying on the western side is not irrigated by the thodu. 6. Learned Sub Divisional Magistrate went on to find that the thodu is used for agriculture irrigation that there is an obstruction across the thodu and that as the counter petitioners are residents in area, they were directed to reconstruct the thodu and remove the obstruction along the thodu. This order has been challenged in this revision. 7. I heard learned counsel for the petitioner Mr.Abdul Hakhim. Copies of the objections filed by the counter petitioners in the Court below and the testimony of CPWs 1 and 2 have also been made available. 8. I have referred to the contentions of the counter petitioners. I do not propose to undertake a detailed Crl.R.P.4513/2007 4 appraisal of the rival contentions or the evidence of CPWs 1 and 2. But what struck me in so far as the order passed by the learned Sub Divisional Magistrate is concerned, is an almost total absence of consideration of either the objections filed by the counter petitioners or appreciation of the testimony of CPWs 1 and 2. In fact, one sentence in the cross-examination of CPW1 alone has been culled out apparently to affirm the existence of thodu from the 6th spout. I have gone through the testimony of CPW1. It is true that he has testified that the water from spout No.6 flows along the thodu. But that is different from saying that the water from the 6th spout flows along the property of the counter petitioners and that it constitutes a public canal and that they have obstructed the flow of water through the canal. The contention raised by the counter petitioners denying the existence of public thodu through their property has not merited consideration by the learned Sub Divisional Magistrate. The further contention raised by them as regards the ex parte nature of the reports of the Village Officer and the Assistant Executive Engineer have also Crl.R.P.4513/2007 5 not merited consideration. These in my view, vitiates the order passed by the leaned Magistrate. I am of the further view that the Sub Divisional Magistrate should reconsider the issue. 9. In the circumstances, Criminal Revision Petition is allowed. The order impugned is set aside. Learned Sub Divisional Magistrate, Muvattupuzha, will reconsider M.C.No.40/2002 with specific reference to the objections filed by the counter petitioners (who are interested in prosecuting their objections). Parties are at liberty to adduce further evidence if they are so advised. Petitioners and counter petitioners shall be re-heard and fresh orders shall be passed within a period of six months from the date of receipt of a copy of this order. V.GIRI, Judge mrcs