IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT THURSDAY, THE 4TH DECEMBER 2008 / 13TH AGRAHAYANA 1930 Crl.MC.No. 4488 of 2008() ------------------------- MC.73/2008 of the SUB DIVISIONAL MAGISTRATE, THRISSUR .................... PETITIONER(S): --------------- M/S.LIFE GROUP DEVELOPERS AND PROMOTERS, N.P.COMPLEX, MANNATH LANE, M.G.ROAD, THRISSUR, REPRESENTED BY MANAGING PARTNER, ROSHAN K.S, AGED 33, S/O.K.V.SATHYAVRUTHAN. BY ADV. SRI.VARGHESE C.KURIAKOSE RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SHRI.M.A.ANTO, MALIEKKAL HOUSE, NIRMALAPURAM ROAD, KOORKENCHERRY VILLAGE, THRISSUR TALUK. PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J. ---------------------- Crl.M.C.No.4488 of 2008 ---------------------------------------- Dated this the 4th day of December 2008 O R D E R The petitioner is a partnership firm engaged in land development and construction of flats. They have undertaken a project. According to them, they have got clearance from all authorities to justify commencement and progress of construction. When the party started undertaking the construction, on the complaint of a neighbour/some neighbours, a conditional order under Section 133 Cr.P.C was passed by the Sub Divisional Magistrate on 01/03/2008. The petitioner appeared before the Sub Divisional Magistrate in response to the said conditional order. Proceedings are pending before the Sub Divisional Magistrate as M.C.No.73/2008. There was an attempt by the Revenue Divisional Officer by issue of a stop memo through a Village Officer calling upon the petitioner to stop the construction. The petitioner came to this court and by Annexure A8 order dated 01/04/2008 in W.P.C.No.4393/2008, the said order was set aside. It was observed by the learned Judge in the order that expeditious steps must be taken to dispose of M.C.No.73/2008. It is submitted before me that M.C.No.73/2008 Crl.M.C.No.4488/08 2 has not been disposed of by now and the proceedings are still going on. The learned Public Prosecutor, after taking instructions from the Sub Divisional Magistrate, submits that it is expected that final disposal of M.C.No.73/2008 can be done within a short period of time. 2. The petitioner is aggrieved by Annexure 12 order issued by the Sub Divisional Magistrate to the Sub Inspector of Police under which the Sub Inspector of Police was directed “to stop the illegal construction of flats in the premises mentioned in the conditional order”. 3. The learned counsel for the petitioner submits that Annexure 12 order is totally unjustified and is illegal too. The learned counsel for the petitioner contends that though a conditional order has been passed under Section 133 Cr.P.C and proceedings have been initiated, there has been no order passed under Section 142 Cr.P.C so far and in the absence of an order under Section 142 Cr.P.C, the Sub Divisional Magistrate is not justified either himself or through Village Officers or Sub Inspectors of Police under him to compel the petitioner to stop construction which the petitioner has already undertaken. Crl.M.C.No.4488/08 3 4. I find force in the contention of the learned counsel for the petitioner. To a pointed query by this court as to whether any order has been passed under Section 142 Cr.P.C after passing the conditional order under Section 133 Cr.P.C, the learned Public Prosecutor submits that the order under Section 133 Cr.P.C (a copy of which has been produced as Annexure 9) must be reckoned and construed as a composite order under Section 133 Cr.P.C and 142 Cr.P.C. I have gone through the order. I am afraid, the attempt to justify stoppage of the contentions pending as M.C.No.73/2008 cannot be supported by the theory that Annexure 9 order is a composite order both under Section 133 Cr.P.C and 142 Cr.P.C. A careful reading of the conditional order which is produced as Annexure 9 clearly reveals that it is only a conditional order and not a direction issued under Section 142 Cr.P.C. 5. I am, in these circumstances, satisfied that the attempt made by the Sub Divisional Magistrate without passing an order under Section 142 Cr.P.C to achieve the result which could be achieved under Section 142 Cr.P.C, is not justified. Annexure 12 order therefore deserves to be set aside. The learned counsel for the petitioner advances a further contention Crl.M.C.No.4488/08 4 that the very initiation of proceedings under Section 133 Cr.P.C is itself not justified. He contends that the petitioner has the requisite authority from all authorities and departments to commence and continue the construction and that in these circumstances proceedings initiated under Section 133 Cr.P.C is not justified. 6. I must take note of the nature, quality and contours of the jurisdiction which I am called upon to invoke and exercise. The conditional order has been passed as early as on 01/03/2008. Without demur, the parties who have joined issues had taken part in the proceedings in M.C.No.73/08. At this juncture when the proceedings in M.C.No.73/08 is about to be brought to termination, I am satisfied that the question need not be considered in this proceedings under Section 482 Cr.P.C. 7. However, I take note of the submission of the learned counsel for the petitioner that there is urgent necessity to dispose of M.C.No.73/08 expeditiously. There shall be a direction to the Sub Divisional Magistrate, Thrissur that final orders in M.C.No.73/08 must be passed by the Sub Divisional Magistrate as expeditiously as possible, at any rate, before 31/12/2008. The case shall be posted day to day if that be Crl.M.C.No.4488/08 5 necessary to comply with the directions by 31/12/2008. 8. In the result, a) This Crl.M.C is allowed. b) Annexure 12 order is set aside. c) The Sub Divisional Magistrate is directed to ensure that M.C.No.73/08 is disposed of as expeditiously as possible, at any rate, by 31/12/2008. If necessary, the Sub Divisional Magistrate shall ensure that the case is posted day to day to achieve the said result. 9. I may hasten to observe that this order will not stand in the way of the parties requesting the learned Magistrate to pass any order under Section 142 Cr.P.C till the matter is disposed of by 31/12/2008. Appropriate orders on merits after giving the petitioner an opportunity to raise his objections shall be passed by the Sub Divisional Magistrate on such application, if any, under Section 142 Cr.P.C . Hand over copy of this order to the learned Public Prosecutor. (R.BASANT, JUDGE) jsr // True Copy// PA to Judge Crl.M.C.No.4488/08 6 Crl.M.C.No.4488/08 7 R.BASANT, J. CRL.M.C.No. of 2008 ORDER 09/07/2008