IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 14TH JUNE 2010 / 24TH JYAISTHA 1932 Crl.Rev.Pet.No. 1363 of 2010() -------------------------------------- (AGAINST THE ORDER DATED 9.12.09 OF THE SUB DIVISIONAL MAGISTRATE, DEVIKULAM IN MC.6/2009 .................... REVN. PETITIONER(S): PETITIONER/COUNTER PETITIONER -------------------------------------------------------------------------------------- SHEELA, W/O.GOPALAKRISHNAN, PUTHIYAMADATHIL HOUSE, MARAYOOR. BY ADV. SRI.LATHEESH SEBASTIAN RESPONDENT(S): PETITIONER & STATE ----------------------------------------------------------- 1. STATE OF KERALA, REPRSENTED BY THE DIRECTOR OF PUBLIC PROSECUTIONS, HIGH COURT OF KERALA,ERNAKULAM. 2. SMT.MARY JOSE, W/O.JOSE, KURISINKAL HOUSE, MARAYOOR, IDUKKI DT. BY ADVS. SRI.VIJU ABRAHAM FOR R2 SRI.VENUGOPAL M.R., PUBLIC PROSECUTOR FOR R2. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 14/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ami/ V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.1363 of 2010 ------------------------------- Dated this the 14th day of June, 2010. O R D E R The counter petitioner in a proceedings u/s.136 (1) of Cr.P.C. on the file of the Court of the Sub Divisional Magistrate, Devikulam, is the revision petitioner. 2. M.C.No.6/09 on the files of the Sub Divisional Magistrate, Devikulam, was initiated u/s.133 of Cr.P.C., on the basis of the complaint filed by the 2nd respondent herein. The allegation against the revision petitioner is that, the revision petitioner herein partially obstructed a water channel by planting plantains and filling with earth and thereby causing damage to the property and the building of the 2nd respondent. From the impugned order, it appears that pursuant to the petition, the learned Sub Divisional Magistrate issued an order u/s.133 of Cr.P.C. dated 11.11.2009, directing the revision petitioner to remove the unlawful construction in the thodu within two days from the date of receipt of that order or to appear before the Sub Divisional Magistrate Court on 17.11.2009 and to show cause why the conditional order Crl. R.P.No.1363 of 2010 2 issued u/s.133(1) of Cr.P.C. should not be made absolute. 3. It is not disputed that, pursuant to the above interim order, the revision petitioner as well as the respondent herein were appeared on 12.8.2009 and thereafter site inspection was ordered. On the basis of the report thus obtained, the Sub Divisional Magistrate issued an order dated 24.10.2009, directing the Village Officer, Marayoor, to take urgent steps to stop the filling of the thodu by the revision petitioner and the Village Officer, Marayoor, had issued a stop memo dated 24.10.2009 and the case was posted on 9.12.2009, on which date the revision petitioner did not appear, though the 2nd respondent herein who is the petitioner in M.C.6/09, appeared before the Sub Divisional Magistrate, Devikulam, and the learned Magistrate came into a conclusion that, the revision petitioner has failed to comply with the direction issued by that court u/s.133(1) of Cr.P.C. on 11.11.2009 and accordingly held that the revision petitioner is liable to pay the penalty prescribed u/s.188 of the Indian Penal Code and the preliminary order is liable to be make absolute Crl. R.P.No.1363 of 2010 3 u/s.136 of Cr.P.C. and accordingly the impugned order was issued. 4. It is beyond dispute that on the date of hearing, ie.,on 9.12.2009, the revision petitioner was not present, though he had previously appeared on 12.8.2009. Thus it appears that the impugned order is passed without hearing the revision petitioner. Therefore according to me, the matter can be remanded back to the Sub Divisional Magistrate, Devikulam, to take a fresh decision, upon the dispute, after hearing the revision petitioner and 2nd respondent and so as to enable the Sub Divisional Magistrate to pass a fresh order, I am of the view that the present order can be set aside without entering into any merit and at the very same time the interim order dated 11.11.2009 issued by the Sub Divisional Magistrate can be maintained till he is taking a fresh decision, after hearing the parties concerned. In the result, this revision petition is disposed of without entering into the merits of the order impugned, directing the Sub Divisional Magistrate, Devikulam, to consider the matter afreshly Crl. R.P.No.1363 of 2010 4 from the stage as on 9.12.2009 and to dispose the same as expeditiously as possible at any rate within a period of 45 days. The parties are directed to appear before the court of Sub Divisional Magistrate, Devikulam, on receiving the notice from that court in this regard and the Sub Divisional Magistrate is directed to fix a date according to his convenience at any rate within two weeks from the date of receipt of copy of this order, which shall be produced by the 2nd respondent or the petitioner. Till the disposal of the matter as directed above, the interim order dated 11.11.2009 of the learned Magistrate, will be in force. V.K.MOHANAN, Judge. ami/