IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 30TH JULY 2009 / 8TH SRAVANA 1931 Crl.MC.No. 2614 of 2007 ------------------------------- CRRP.72/2005 of II ADDL. SESSIONS COURT, THIRUVANANTHAPURAM ORDER IN MC 144/03 OF SUB DIVISIONAL MAGISTRATE, THIRUVANANTHAPURAM .......................................... PETITIONER(S): REV.PETITIONER/COUNTER PETITIONER: ------------------------------------------------------------------------------------ A.PRABHAVATHI, VENKARA MANALIL PUTHEN VEEDU, THIRUVALLAM VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.D.KISHORE RESPONDENT(S): RESPONDENTS/PETITIONERS AND STATE: ------------------------------------------------------------------------------------- 1. SASIKUMAR, VOTTUPPU VEEDU, EDAYAR, MUTTATARA. 2. SAJI, ADYAVILAKOM, EDAYAR, THIRUVALLAM. 3. SATHEESAN, VENKAMANALIL VEEDU, THIRUVALLAM. 4. V.APPUKKUTTAN, PRESIDENT, KAIBHAGOM COIR CO-OPERATIVE SOCIETY, PACALLOOR. 5. STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 6. THE SUB DIVISIONAL MAGISTRATE, THIRUVANANTHAPURAM. ADV. SRI.K.B.PRADEEP FOR R2, R3 AND R4 PUBLIC PROSECUTOR SRI. B. VINOD THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 30/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO. 2614 OF 2007 ------------------------------------------ Dated 30th July 2009 O R D E R Petitioner, the counter petitioner in M.C.144/2003 on the file of Sub Divisional Magistrate, Thiruvananthapuram is the petitioner. Petitioners therein are respondents 1 to 4. Respondents 1 to 4 approached Sub Divisional Magistrate, Thiruvananthapuram, complaining the public pathway which passes through the property of the petitioner was obstructed by constructing a wired fence on the northern boundary. As is clear from Annexure-II order passed by Sub Divisional Magistrate, a conditional order under Section 133 of Code of Criminal Procedure directing petitioner to remove the obstruction caused or to appear and show cause why the order shall not made absolute was issued. Petitioner though received the notice and the conditional order, did not appear and did not show any cause. Even though Sub Divisional Magistrate is to pass an order making conditional order absolute as provided under Section 136 of Code CRMC 2614/07 2 of Criminal Procedure, when the counter petitioner did not appear and showed any cause, Sub Divisional Magistrate conducted a further enquiry and examined the witnesses and passed the final order under Section 138 of Code of Criminal Procedure making conditional order absolute. Petitioner challenged that order before Sessions court, Thiruvananthapuram in Crl.R.P.72/2005. Under Annexure-VIII order revision was dismissed. This petition is filed under Section 482 of Code of Criminal Procedure to quash Annexures-II and VIII orders. Case of the petitioner is that before the proceedings were initiated by Sub Divisional Magistrate, petitioner had filed O.S.1209/2002 before the Magistrate court, Thiruvananthapuram and though under Annexure-III judgment that suit was dismissed on 8/12/2005, she filed A.S.62/2006 before Sub court, Thiruvananthapuram challenging the judgment and under Annexure-VI order learned Sub Judge has passed an interim order of injunction restraining respondent in the appeal, who is first respondent in this petition from trespassing into her property and the order was subsisting when Annexure-VIII order was passed. It is contended that learned Sessions Judge was not justified in dismissing CRMC 2614/07 3 the revision when petitioner, an illiterate lady failed to appear before the Sub Divisional Magistrate and the order was obtained by the respondents when civil suit was already pending. Learned counsel argued that the way claimed by first respondent is exclusively to his property and if that be so, proceedings under Section 133 of Code of Criminal Procedure cannot be initiated. Learned counsel relied on the decisions in Abraham and another v. Kuriakose and another (1994 (1) KLJ 918), Ismail v. Kunjan Marakkar & Ors. (1999 (1) KLJ 528), Abraham v. Kuriakose (1994 (1) KLT 1015) , Malathi and another v. State of Kerala and others (2003 (1) ILR (Kerala) 145) and Vasant Manga Nikumba v. Baburao Bihikanna Naidu (1995 Supp. (4) SCC 54) and argued that Annexure-VIII order is liable to be set aside and Annexure-II order is also to be set aside and if necessary Sub Divisional Magistrate is to be directed to re-consider the matter. 2. Learned counsel appearing for respondents 1 to 4 submitted that in O.S.1209/2002 only first respondent is a party and suit that is only one for injunction and the suit was dismissed after CRMC 2614/07 4 recording the evidence and based on Annexure-VI ex- parte order of injunction, petitioner is not entitled to contend that there does not exist a public pathway. It is pointed out that as is clear from Annexure-I report submitted by the Village Officer, which contains a plan, the pathway starts from northern road and reaches southern river and it passes through the property of the petitioner and obstruction was caused on the northern portion of property of the petitioner and in such circumstances there is no reason to interfere with Annexure-I and VIII orders. 3. When Annexure-II order establishes that on getting Annexure-I report of village officer and satisfying that a public pathway exists through the property of the petitioner and it was obstructed, a conditional order was passed directing petitioner to remove the obstruction or to appear and show cause why the conditional order shall not be made absolute. When the notice was served on the petitioner, she did not appear or showed any cause. As provided under Section 136, in such circumstances, Sub Divisional Magistrate need not conduct any further enquiry and need only make the order absolute. Sub Divisional Magistrate in CRMC 2614/07 5 spite of the power did not make the order absolute for that reason and instead examined the witnesses produced by the respondents and satisfying that public pathway was obstructed made the conditional order absolute. 4. Petitioner who after receipt of show cause notice did not appear and did not show any cause is not entitled to contend at this stage either that there does not exist a public pathway or that public pathway was not obstructed. Though learned counsel vehemently argued that learned Sessions Judge did not properly consider the revision, on the facts I find no reason to interfere with Annexure-VIII order passed by the learned Sessions Judge or Annexure-II order passed by the Sub Divisional Magistrate. It is to be born in mind that the suit instituted by the petitioner was only one for injunction and that too against first respondent alone who is only the one among four petitioners who approached the Sub Divisional Magistrate. Hence even if the appeal is to be allowed and in reversal of the decree of the Munsiff a decree in favour of the petitioner is to be passed it will not operate as against others who are not parties to the decree. In such circumstances, based on CRMC 2614/07 6 Annexure-VI ex-parte order of interim injunction obtained in the first appeal, at the time of admission, petitioner is not entitled to contend that there does not exist a public pathway or that Sub Divisional Magistrate is not justified in making the conditional order absolute. Petition is dismissed. Dismissal of the petition will not disentitle the petitioner from instituting a suit for declaration or to seek any remedy available under the law. M.SASIDHARAN NAMBIAR, JUDGE. uj.