IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 1ST JUNE 2009 / 11TH JYAISHTA 1931 CRL.REV.PET.NO. 37 OF 2001() ---------------------------- MC.296/1998, SUB DIVISIONAL MAGISTRATE, THIRUVANANTHAPURAM .................... REVN. PETITIONER(S) - 1ST RESPONDENT: ------------------------------------------------------ P.S. KAMAL SEN, T.C. 11/916, BETHELHEM, NANTHONCODE, THIRUVANANTHAPURAM. BY ADV. SRI.G.GOPALAKRISHNAN NAIR SRI.R.BINDU (SASTHAMANGALAM) RESPONDENT(S) - PETITIONER 2ND RESPONDENT & STATE: -------------------------------------------------------------------------- 1. SASIDHARAN, AMBADI, PULAYANARJKOTTARAM, AKKULAM, THIRUVANANTHAPURAM. 2. SECRETARY, KERALA STATE HOUSING BOARD, THIRUVANANTHAPURAM. 3. THE SUB DIVISIONAL MAGISTRATE, THIRUVANANTHAPURAM. 4. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. SRI.P.GOPALAKRISHNAN NAIR FOR R1 BY PUBLIC PROSECUTOR SHRI RAVINDRA BABU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.37 of 2001 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 1st day of June, 2009 O R D E R -------------- Respondent No.1 filed a complaint before Sub Divisional Magistrate, Thiruvananthapuram stating that petitioner is causing nuisance to him and others and taking lorry loads of earth through the road adjacent to his house causing danger to life and property and due to the heavy traffic a 11 KV electric post situated near his house has slanted exposing danger. He alleged that cracks have developed on the walls of the house and compound. Sub Divisional Magistrate enquired the matter through the Village Officer. Village Officer submitted a report. Based on that report Sub Divisional Magistrate issued a conditional order under Section 133(1) of the Code of Criminal Procedure (for short, “the Code”). Notice was issued to the petitioner either to comply with that order or to show cause why that order should not be made absolute. Petitioner filed objection taking various contentions. It would appear that the matter was posted for enquiry thereafter. But counsel for petitioner requested for time. Sub Divisional Magistrate issued the impugned order. Learned counsel for petitioner contended that going by the report of the Village Officer the CRL. R.P. No.37 of 2001 -: 2 :- matter does not come within the purview of Sec.133(1) of the Code. It is also argued that at any rate Sub Divisional Magistrate was not correct in passing the order on the basis of report of the Village Officer. Respondent No.1 supported the impugned order. 2. I am not going into the correctness of the report submitted by the Village Officer and whether it supported the averments in the complaint preferred by respondent No.1. Whether report of the Village Officer attracted the provisions of Sec.133(1) of the Code is a matter which the Sub Divisional Magistrate has to consider. As it now stands the impugned order is passed without conducting enquiry under Sec.138 of the Code. If it is a case where any danger to life or public nuisance is involved, that may have to be enquired into as contemplated under Section 138 of the Code. Sub Divisional Magistrate can pass a conditional order based on a report of the Village Officer but such report by itself is not evidence as required under Sec.138 of the Code. Proper course would be to examine the Village Officer and prove the report as part of the enquiry under Sec.138 of the Code. That having been not done, the order under challenge cannot stand. 3. Learned counsel for petitioner submitted that since the CRL. R.P. No.37 of 2001 -: 3 :- order was found to be prima facie illegal its operation was stayed, stay is in force for the last 8 years and now the matter has become infructuous. That is a matter to be looked into by the Sub Divisional Magistrate. Resultantly, revision is allowed. Impugned order is set aside and the matter is remitted to the Sub Divisional Magistrate for fresh disposal after complying with the provisions of Chapter XB of the Code. Criminal Miscellaneous Petition No.157 of 2001 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv THOMAS P.JOSEPH, J. =================== CRL. R.P. NO.37 OF 2001 =================== O R D E R 1ST JUNE, 2009