IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 27TH OCTOBER 2010 / 5TH KARTHIKA 1932 Crl.MC.No. 3155 of 2010() ----------------------------------- RP.41/2008 of ADDL. SESSIONS COURT, ALAPPUZHA .................... PETITIONER(S): REVISION PETITIONER/RESPONDENT ----------------------------------------------------------------------------- PRABHAKARAN, S/O.GOVINDAN, KARIMTHOTTUNKAL, THAKAZHY P.O. BY ADV. SRI.GEORGE SEBASTIAN SRI.JAYAN C.DAS RESPONDENT(S): RESPONDENTS/COMPLAINANT ---------------------------------------------------------------------- 1. K.K.CHANDRAN, S/O.KUTTY, KATTIL PUTHANPURAYIL, THAKAZHY- 688 562. 2. SUB DIVISIONAL MAGISTRATE, ALAPPUZHA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.R.AZAD BABU R2 BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 27/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No.3155 OF 2010 =========================== Dated this the 27th day of October,2010 ORDER A conditional order was passed by the Sub Divisional Magistrate, Alappuzha under section 133 of Code of Criminal Procedure directing the petitioner to appear and show cause why he shall not remove the obstruction caused to the public way. Petitioner did not appear or showed any cause. Consequently a final order was passed under section 138 of Code of Criminal Procedure. Petitioner challenged that order before Sessions Court, Alappuzha in Crl.R.P.41/2008 which was filed not within time. Learned Additional Sessions Judge by Annexure V order dismissed the revision. This petition is filed under section 482 of Code of Criminal Procedure to quash Annexure III order passed by the learned Sub Divisional Magistrate Crl.M.C.3155/2010 2 as well as Annexure V order passed by the Additional Sessions Judge, Alappuzha. 2. Learned counsel appearing for the petitioner and learned counsel appearing for the first respondent were heard. 3. Learned counsel appearing for the petitioner submitted that due to severe backache, petitioner could not appear before the Sub Divisional Magistrate and consequently the final order was passed and petitioner may be granted an opportunity to raise his contentions and a direction be issued to the Sub Divisional Magistrate to pass fresh order under section 138 of Code of Criminal Procedure after affording an opportunity to the petitioner to raise the contentions. 4. Learned counsel appearing for the first respondent submitted that petitioner did not avail of the opportunity and did not even file the revision within time and in such circumstances he is not entitled to get further opportunity. Crl.M.C.3155/2010 3 5. It is not disputed that the final order passed under section 138 of Code of Criminal Procedure was not passed after hearing the petitioner or considering his objections. True, petitioner did not appear and did not show any cause for making the conditional order absolute. Sub Divisional Magistrate is justified in making the conditional order absolute, on the failure of the petitioner to appear or submit any objection to the conditional order. But considering the fact that the contentions of the petitioners could not be agitated due to valid reasons, it is only in the interest of justice to grant an opportunity to the petitioner to raise his contentions. But petitioner shall not misuse the opportunity to protract the proceedings. Petition is disposed. Annexure III order as confirmed by Annexure V order is quashed. N.H.3496/2008 is remitted to Sub Divisional Magistrate, Alappuzha for fresh disposal. Petitioner is directed to appear before the Sub Crl.M.C.3155/2010 4 Divisional Magistrate on 15.11.2010 at 11 a.m. and Sub Divisional Magistrate is directed to question the petitioner as provided under section 137 of Code of Criminal Procedure and thereafter proceed as provided under section 137 and 138 of Code of Criminal Procedure and pass final order within two months from 15.11.2010. Issue a copy of this order to the petitioner, first respondent and learned Public Prosecutor. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006