IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE K.M.JOSEPH THURSDAY, THE 6TH MARCH 2008 / 16TH PHALGUNA 1929 W.A.No. 542 of 2008 ---------------------------- AGAINST THE JUDGEMENT IN WPC.5044/2008 DATED 27/02/2008 .................... APPELLANT/PETITIONER: ------------------------------------ ELIAS @ SABU, MARETH PAYYANAMYALIL, KANJIRAMATTAM, ERNAKULAM. BY ADV. SRI.P.P.JACOB RESPONDENTS/RESPONDENTS: ----------------------------------------------- 1. THE SUB DIVISIONAL MAGISTRATE, PALAI, R.D.O. OFFICE, PALAI, KOTTAYAM. 2. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, TRIVANDRUM. BY GOVERNMENT PLEADER MR.M.P.SREEKRISHNAN THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 06/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: H.L.DATTU, C.J. & K.M.JOSEPH, J. ------------------------------------------ W.A.No.542 of 2008 ------------------------------------------ Dated, this the 6th day of March, 2008 JUDGMENT H.L.Dattu, C.J. Appellant before us was the petitioner in W.P.(C) No.5044 of 2008. 2. In the writ petition filed under Article 226 of the Constitution, the petitioner had called in question Ext.P1 order passed by the Sub Divisional Magistrate, Palai in exercise of his powers under Section 144(1) of the Code of Criminal Procedure. 3. The learned Single Judge without going into the merits or demerits of the petitioner's case has only observed in his order while disposing of the writ petition that if for any reason the petitioner is aggrieved by Ext.P1 order, he can always make an application before the very same Sub Divisional Magistrate for recalling his earlier order. Aggrieved by the observation made by the learned Single Judge, the petitioner in the writ petition is before us in this appeal. 4. Ext.P1 order is passed by the Sub Divisional Magistrate in purported exercise of his powers under Section 144(1) of the Code of Criminal Procedure. Sub-section (5) of Section 144 of the Code of Criminal Procedure authorises the District Magistrate, either on his own motion or on the application of any person aggrieved, rescind or alter any order made under sub-section (1) of Section 144 of the Code. 5. Since sub-section (5) of Section 144 of the Code itself gives a right to the petitioner to seek appropriate remedy against an order passed under Section 144(1) of the Code, for the present, we do not intend to interfere with W.A.No.542 of 2008 2 the order passed by the Sub Divisional Magistrate. 5. In view of the above, while confirming the orders passed by the learned Single Judge, we issue the following directions: ORDER i) Appellant shall make an application, if he so desires, before the Sub Divisional Magisrate, Palai under sub-section (5) of Section 144 of the Code of Criminal Procedure for appropriate reliefs within a week's time from today. ii) If such an application is made by the appellant within the time granted by this Court, the Sub Divisional Magistrate, Palai will consider the same and take a decision in accordance with law within 15 days thereafter. iii) A copy of this order shall be furnished to the learned Government Pleader Sri.M.P.Sreekrishnan. Ordered accordingly. (H.L.DATTU) CHIEF JUSTICE (K.M.JOSEPH) JUDGE vns