IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 9TH NOVEMBER 2011 / 18TH KARTHIKA 1933 Crl.Rev.Pet.No. 1477 of 2011() ------------------------------------------- REVN. PETITIONER(S): APPELLANT/ACCUSED --------------------------------------------------------------------- MINI, AGED 38, S/O.IZADOOR, RESIDING AT EDVIN SADANAM, KARUNAGAPPALLY TALUK, KOLLAM. BY ADV. SRI.R.KISHORE RESPONDENT(S): COMPLAINANT ------------------------------------------------- 1. THE TAHASILDAR AND EXECUTIVE MAGISTRATE, TALUK OFFICE, KOLLAM-PIN-691 001. 2. SRI.SHIBU SOLOMON, RAJAMANGALATHU VEEDU, PADAPPAKARA, MULAVANA, KOLLAM-PIN-691 001. 3. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.PIN-682 031 R2 BY ADV. SRI.K.SUBASH CHANDRA BOSE R1 & R3 BY PUBLIC PROSECUTOR SRI.T.R.RAJESH THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts CRRP.NO.1477/2011 APPENDIX PETITIONER'S ANNEXURES: ANNEX A1 COPY OF THE SALE DEED NO.3203/97 OF KUNDARA S.R.O. ANNEX A2 COPY OF THE IDENTITY CARD OF REVISION PETITIONER. ANNEX A3 COPY OF THE ORDER DATED 28/4/2011 PASSED BY THE 1ST RESPONDENT. ANNEX A4 COPY OF THE PETITION DATED 13/5/2011. ANNEX A5 COPY OF THE PETITION DATED 13/5/2011 FILED BY THE REVISION PETITIONER BEFORE THE DISTRICT COLLECTOR. ANNEX A6 COPY OF THE PROPERTY TAX RECEIPT IN THE NAME OF THE PETITIONER. RESPONDENT'S ANNEXURES: NIL /TRUE COPY/ P.A.TO.JUDGE sts S.S.SATHEESACHANDRAN, J -------------------------------------- Crl.R.P No.1477 OF 2011 ----------------------------------------- Dated this the 9th day of November 2011 ORDER Challenge in the revision is against the order passed by the Sub Divisional Magistrate in a proceeding under Section 133 of the Code of Criminal Procedure directing the revision petitioner to remove the obstruction caused over a pathway, which is claimed, to be used by the petitioner for ingress and egress to his residential building. A conditional order was passed in such proceeding by the magistrate directing the revision petitioner, the opposite party in the proceedings, to remove the obstruction or to show cause why such order should not be made absolute. In response to that notice, he appeared before the magistrate and filed objections. The order passed by the Sub Divisional Magistrate produced as Annexure A3, challenged in the revision, would show that after filing objections when the case was posted for inquiry the petitioner did not turn up. Executive Magistrate thereupon made the impugned order absolute directing the revision petitioner to remove the obstruction caused over the pathway within the time limit fixed. According to the counsel for the petitioner, in his objections the petitioner has contended that no public right is involved and as such the Executive Crl. R.P No.1477 OF 2011 2 Magistrate has no jurisdiction to entertain the petition alleging obstruction over the way claimed by the petitioner in the proceedings. So much so, the impugned order, Annexure A3 order, passed by the magistrate is one without jurisdiction and liable to be set aside, according to the counsel. 2. The respondent in the revision, the petitioner in the proceedings, has entered appearance through counsel. The learned counsel contends that simultaneously with the proceedings before the Sub Divisional Magistrate, there was a civil case instituted at the instance of the revision petitioner over the very same dispute. That suit had been dismissed for default after dismissal of an application for injunction vacating the exparte order previously obtained, is the submission of the counsel. A copy of the judgment rendered in O.S No.830/2009 passed by the Additional Munsiff, Kollam dismissing the suit filed by the revision petitioner/plaintiff was handed over to me by the counsel for perusal. The learned public prosecutor would submit that pursuant to Annexure A3 order passed by the Executive Magistrate, whatever obstruction imputed over the way covered by the proceedings before the magistrate had been removed. It is further submitted by the public prosecutor over and above the complaint of the petitioner, there was a mass petition from residents Crl. R.P No.1477 OF 2011 3 of the locality also as to the obstruction caused to a way blocking it unloading rubble stones. Taking into account the subsequent events as referred to above, I find no interference with the order of the Sub Divisional Magistrate over Annexure A3 order is warranted in exercise of revisional jurisdiction. If at all the petitioner has any substantive right over the property covered by the proceedings, needless to point out, Annexure A3 passed by the Executive Magistrate would not preclude him from establishing his right before a competent civil forum. Whatever orders passed by the Sub Divisional Magistrate under the provisions covered by Chapter XB of the Code of Criminal Procedure, in exercise of his prohibitory jurisdiction, which are intended to negate threat to public peace and tranquility that would not affect the substantive rights of the parties in such proceedings to agitate their rights relating to the disputes, to have conclusive decision, taking appropriate proceedings as provided by law, before the competent forum. Subject to the above observations the revision is disposed. Sd/- vdv S.S.SATHEESACHANDRAN, JUDGE //True Copy// P.A to Judge Crl. R.P No.1477 OF 2011 4