IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 14TH OCTOBER 2008 / 22ND ASWINA 1930 Crl.Rev.Pet.No. 1409 of 2007(B) ------------------------------- AGAINST THE ORDER DATED 06/02/2007 OF SUB DIVISIONAL MAGISTRATE, OTTAPALAM IN MP.27/2006. .................... PETITIONERS:PETITIONERS: -------------------------------------------- 1. BALAKRISHNAN, AGED 75 YEARS, S/O.KOPPAN, PRAYAGA, KOOTTANAD P.O., PALAKKAD DIST. 2. K.M.RAMADAS, DAS BHAVAN, KOOTTANAD POST, PALAKKAD DISTRICT. BY ADV. SRI.SANTHEEP ANKARATH RESPONDENTS:RESPONDENTS: ----------------------------------------------- 1. UNNIKRISHNAN, S/O.LAKSHMIKUTTY AMMA, PONNULLI HOUSE, PARVATHI NILAYAM, PERUMANNOOR, MALA AMSOM, VATTENAD DESOM, OTTAPALAM TALUK, PALAKKAD DISTRICT. 2. SUB DIVISIONAL MAGISTRATE, OTTAPALAM, TALUK OFFICE, OTTAPALAM. ADV. SRI.V.SANTHARAM FOR R1 SRI.ANTO THOMAS FOR R1 BY PUBLIC PROSECUTOR SRI. SHYSON P.MANGUZHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 1409 OF 2007 ............................................ DATED THIS THE 14th DAY OF OCTOBER, 2008 ORDER The question to be decided in the revision petition is whether Sub Divisional Magistrate is competent to pass a final order under Section 138 of Code of Criminal Procedure, without complying with the procedure provided under Section 137 and 138 of Code of Criminal Procedure. 2. Petitioners, along with some others, submitted a complaint before Sub Divisional Magistrate, Ottapalam on 18.7.2005, contending that a public way passes through Survey No.436/1 & 2 and on the morning of 2.7.2005, first respondent, the owner of the property in Survey No.436/2, caused obstruction to the public way using a JCB and sought an order for removal of the obstruction of the way. Sub Divisional Magistrate, called for a report from the Village Officer and based on the report submitted by Village Officer, passed a conditional order under Section 133(1) of Code of Criminal Procedure directing first respondent to remove the obstruction caused or to appear on 11.10.2006 and show cause why the conditional order shall not be made absolute. First respondent appeared before Sub Divisional Magistrate and filed a detailed statement denying the existence of a public way and the alleged obstruction caused. Sub CRRP 1409/2007 2 Divisional Magistrate thereafter called for a report from Senior Superintendent of Revenue Divisional Office, after inspection. A report was submitted by Senior Superintendent on 20.3.2006. It is seen from the records that statements of first petitioner, first respondent and others were also recorded. A final order was passed on 6.2.2007, dropping the proceedings withdrawing the conditional order. It is challenged in this revision petition filed under Section 397 read with 401 of Code of Criminal Procedure. 3. Learned counsel appearing for petitioners and first respondent were heard. The argument of the learned counsel appearing for petitioners is that Sub Divisional Magistrate is competent to pass a final order under sub-section 3 of Section 138 of Code of Criminal Procedure, only after recording evidence as in a summons case, as provided under sub-section (1) and that too, only after considering the evidence on record. It was argued that learned Magistrate, after first respondent denied existence of the public way, had called for a report of the Senior Superintendent and thereafter passed a final order in violation of the mandatory provisions under Section 138(1) of Code of Criminal Procedure and therefore the order is illegal and is to be set aside. 4. Learned counsel appearing for first respondent argued that petitioners are claiming a public right of way through the property of CRRP 1409/2007 3 first respondent and as is seen from the complaint itself, Survey No.436/2 belong to first respondent and Survey No.436/1 belongs to first petitioner and no public way exists through Survey No.436/2 and the Sub Divisional Magistrate, on satisfying that there does not exist a public way, dismissed the complaint withdrawing the conditional order and there is no illegality or irregularity warranting interference. It was argued that one of the neighbours of first petitioner had instituted a suit claiming a right of way through the property of first respondent, which was dismissed and petitioner had filed a suit against first respondent in respect of the water channel which lies on the southern side of R.S.436/1 and though right of first petitioner was not established, relief was granted as against first respondent as he has no right over that property and therefore there is no reason to interfere with the order. 5. Section 133 of Code of Criminal Procedure enables Sub Divisional Magistrate or the Executive Magistrate to pass a conditional order for removal of nuisance or obstruction caused to the public way. Under sub-section (1), if Sub Divisional Magistrate is satisfied on information or on any report submitted by a police officer and on taking evidence and he considers that any unlawful obstruction or nuisance should be removed from any public place or way, river or channel, which is or may be lawfully used by the public, CRRP 1409/2007 4 he is competent to pass a conditional order requiring the person causing such obstruction or nuisance to remove the same within a time to be fixed by the order or if he objects to do so, to appear and show cause why the conditional order shall not be made absolute. Section 137 of Code of Criminal Procedure provides the procedure in case the person against whom a conditional order was passed under Section 133 of Code of Criminal Procedure appears and show causes. Under sub-section (1), where an order is passed under Section 133 for the purpose of preventing obstruction, nuisance or danger to the public, in the use of any way, river, channel or place, and the person against whom the order was made, appears, Magistrate shall question him as to whether he denies existence of any public right in respect of the way, river, channel or place. If he denies, Magistrate, before proceeding under Section 138 of Code of Criminal Procedure, shall enquire into the matter and proceed under sub-section (2) or (3). Under sub-section (2), if in such enquiry, Magistrate finds that there is reliable evidence in support of such denial, he shall stay the proceedings, until the matter of existence of such right has been decided by a competent court and if he finds that there is no such evidence for the denial, he shall proceed as provided under Section 138 of Code of Criminal Procedure . Under sub-section (3) of Section 137, if the person on being questioned by the Magistrate, fails to deny CRRP 1409/2007 5 existence of the public right or the nature therein referred to or having denied the public right, fails to adduce reliable evidence in support thereof, he shall not be permitted to make any such denial thereafter. Even according to first respondent, he appeared and denied the existence of public right. Therefore before proceeding under Section 138 of Code of Criminal Procedure, Sub Divisional Magistrate is bound to conduct an enquiry as provided under Section 137. The scope of that enquiry is only to find out whether there is any evidence in support of the denial. If there is no evidence in support of the denial, then the person is not entitled thereafter to take up the denial in the course of the enquiry as provided under Section 138 of Code of Criminal Procedure . On the other hand, if Sub Divisional Magistrate, on such enquiry, finds that there is reliable evidence in support of such denial, the procedure to be followed by Sub Divisional Magistrate is to stay the proceedings until the matter of existence of such right has been decided by a competent court. Only if he finds that there is no such evidence for the denial, he has to conduct an enquiry as provided under Section 138 of Code of Criminal Procedure. 6. Sub-section (1) of Section 138 of Code of Criminal Procedure mandates that if the person against whom, on order under Section 133 of Code of Criminal Procedure, appears and shows cause against CRRP 1409/2007 6 the order, the Magistrate shall take evidence in the matter as in a summons case. Under sub-section (2), if Magistrate, on recording such evidence and on considering the evidence so recorded, is satisfied that the order either as originally made or subject to modification is reasonable and proper, the order passed under Section 133(1) shall be made absolute with or without modification. On the other hand, if Magistrate is satisfied that the order originally passed is not reasonable and proper, no further proceedings shall be taken in the case. 7. As is seen from the impugned order, Sub Divisional Magistrate did not comply with the mandatory provisions of Section 137 and 138 of Code of Criminal Procedure. If the order passed on 6.2.2007 is to be treated as an order passed by Sub Divisional Magistrate, on satisfying that there is evidence to support the denial of existence of a public right made by first respondent, an order could only be as provided under sub-section (2) of Section 137 of Code of Criminal Procedure and it cannot be dismissal of the complaint as has been done in this case. On the other hand, if the order is passed under Section 138(3) of Code of Criminal Procedure, as it purported to be , Sub Divisional Magistrate is bound to comply with the procedure provided under sub-section (1) of Section 138. He has to record the evidence as in a summons case and has to consider the CRRP 1409/2007 7 evidence and then only can decide whether the order passed under Section 133(1) is reasonable and proper. Only if it is found that it is not reasonable and proper, an order as provided under sub-section (3) could be passed. Though the impugned order shows that report submitted by Senior Superintendent was considered, it does not show that the statements which are seen recorded by the Magistrate was considered. It is clear that evidence was not recorded as in a summons case as is mandatory under sub-section (1) of Section 138. In such circumstances, there is no other option but to set aside the impugned order remitting the matter for fresh consideration by Sub Divisional Magistrate, after complying with the procedure provided under Section 137 and 138 of Code of Criminal Procedure. 8. Revision petition is allowed. The order passed on 6.2.2007 in M.P.27 of 2006 is set aside. Sub Divisional Magistrate is directed to comply with the procedure provided under Section 137 and 138 of Code of Criminal Procedure. As first respondent has denied the existence of the public way, Sub Divisional Magistrate has to conduct an enquiry as provided under sub-section (2) to find whether there is any reliable evidence in support of such denial. After conducting such enquiry, if it is found that there is evidence in support of such denial, Magistrate shall stay the proceedings as provided under sub-section (2) and await decision of competent court. On the other hand, if it is CRRP 1409/2007 8 found that there is no evidence in support of the denial, he is bound to proceed as provided under Section 138 of Code of Criminal Procedure. Sub Divisional Magistrate, at that stage, is bound to record the evidence as in a summons case. It is only after recording the evidence and considering the evidence so recorded, an order either under sub-section 2 or sub-section (3) can be passed. Parties are entitled to adduce evidence at that stage. Send back the records immediately. M.SASIDHARAN NAMBIAR, JUDGE lgk/-