IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 7TH OCTOBER 2009 / 15TH ASWINA 1931 Crl.Rev.Pet.No. 4035 of 2008() ------------------------------ CMP.8/2007 of SUB DIVISIONAL MAGISTRATE, PERINTALMANNA. .................... REVN. PETITIONER(S): COUNTER PETITIONER ------------------------------- CHERAKKATTIL ABDULLAH S/O.UNNEEN, EDAIKKAL, ALIPARAMBA. BY ADV.MR.MILLU DANDAPANI RESPONDENT(S): PETITIONER & STATE ------------------------- 1. C.K.MUSTHAFA, S/O.KUNHAHAMMED, CHEMMANKUZHIYIL HOUSE, EDAIKKAL, ALIPARAMBA. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR OF HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADVS. MR.P.C.SASIDHARAN, MR.G.GIREESH KUMAR. R2 BY PUBLIC PROSECUTOR MR.RITHWIK THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07/10/2009 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A. NO.12299/2008 IN CRRP. NO.4035/2008 DISMISSED 07/10/2009 SD/- P.S.GOPINATHAN, JUDGE TRUE COPY P.A. TO JUDGE tss P.S.GOPINATHAN, J. == = = = = = = = = = = = Crl.R.P.No.4035 of 2008. = = = == = = = = = == = = Dated this the 7th day of October, 2009. O R D E R The revision petitioner is the counter-petitioner in CMP.No.8/2007 on the file of the Sub Divisional Magistrate, Perinthalmanna. The first respondent herein filed the above petition with an allegation that there existed a public path way passing through the western side of the AMLP School, Edaikkad and that the revision petitioner who is the counter-petitioner before the lower court had obstructed the path way. Being satisfied with a prima facie case, the Sub Divisional Magistrate issued a conditional order under Section 133(1) of the Code of Criminal Procedure. The respondent was called upon to show cause for not making the order absolute, if not complied with. 2. The revision petitioner entered appearance and filed objection stating that there existed no public path way as alleged by the respondents herein. Crl.R.P.No.4035 of 2008. -: 2 :- 3. The learned Sub Divisional Magistrate called for a report from the Village Officer and Addl.Tahsildar. Then witnesses from either side were examined and seven documents were exhibited. The learned Magistrate finally arrived at a conclusion that there existed a road on the western side of the AMLP School, Edaikkal and it was objected by the revision petitioner herein by constructing steps. Accordingly, interim order was made absolute and the revision petitioner was directed to remove the steps so constructed. 4. Assailing the correctness, legality and propriety of the order impugned, this revision petitioner was filed. Learned counsel on both sides and the learned Public Prosecutor were heard. 5. As regards the existence of the path way there is oath against oath. During the pendency of the proceedings the revision petitioner instituted a suit as OS.No.120/2008 before the Munsiff's Court, Perinthalmanna for a permanent prohibitory injunction with an allegation against the Crl.R.P.No.4035 of 2008. -: 3 :- respondent that he had been attempting to trespass into the plaint schedule property. According to the revision petitioner, the plaint schedule property covers so called disputed path way. Regarding the identity of the property there is dispute. I find that at this stage it need not be probed into in this proceedings. However, the revision petitioner took out a commission. The advocate commissioner inspected the property and filed a report along with a sketch. Copy of the report of the commission, along with sketch, certified copy of the document relating to the property of the respondent, which were marked as Ext.P7, were produced during the course of enquiry. Though the copy of the document was marked as Ext.P7, the lower court didn’t mark the report and sketch submitted by the commissioner. According to the learned counsel for the revision petitioner, there is no good reason for not marking report and sketch which would indicate that there exist no public path way as contended by the respondent. The learned counsel for the revision petitioner further Crl.R.P.No.4035 of 2008. -: 4 :- argued that because of the non marking of the documents, he was denied an opportunity to present his case. It was also argued that the report submitted by the Village Officer would justify the report submitted by the commissioner and it is ignoring that the report of the Village Officer that there exist no path way, the order impugned was passed. 6. Admittedly, the revision petitioner had taken up the matter before the civil court. In the above circumstance, especially in view of Section 137(2) Crl.P.C., I find that the lower court should have refrained from passing an order like the one impugned. A reading of Sec.137(1) and (2) would be appropriate. It reads as follows: “137. Procedure where existence of public right is denied:- (1) Where an order is made 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, the Magistrate shall, on the appearance before him of the person against whom the order was made, question him as to whether he denies the existence of any public right in respect of the way, river, channel or place, and if he does so, the Magistrate shall, before proceeding under Crl.R.P.No.4035 of 2008. -: 5 :- section 138, inquire into the matter.” (2) If in such inquiry the Magistrate finds that there is any reliable evidence in support of such denial, he shall stay the proceedings until the matter of the existence of such right has been decided by a competent Court; and if he finds that there is no such evidence, he shall proceed as laid down in section 138.” 7. In this case, Ext.P7 document produced by the revision petitioner would show that there was no public path way leading to the property of the respondent as contended by the revision petitioner. On a prim facie perusal of the report of the commission also would show that there existed no public path way leading to the property of the respondent. In the above circumstance, there is some reliable evidence in support of such denial. That being the materials on record, the lower authority would have stayed the proceedings as contemplated under Sec.137(2) Crl.P.C. until the matter has been decided by the competent civil court. In this view of the matter, I find that the order impugned is not sustainable and it is liable to be set aside and the proceeding is to be stayed under Crl.R.P.No.4035 of 2008. -: 6 :- Sec.137(2) Crl.P.C. 8. In the result, the revision petition is allowed. The order impugned is set aside and remanded back to the lower authority for fresh disposal after the disposal of the suit OS.No.120/2008 on the file of the Munsiff’s Court, Perinthalmanna. Till the civil suit is decided, the proceedings would stand stayed under Sec.137(2) Crl.P.C. 9. The learned counsel for the respondent submitted for a direction to maintain status quo. Since the matter has been seized by the civil court the parties are bound to maintain status quo till the suit is disposed or until otherwise it was ordered by the civil court or thereafter an order is passed by the lower court, in case it was warranted. The lower court shall dispose of the proceeding untrammelled by the observations made in this order. P.S.GOPINATHAN, JUDGE. Kvs/-