IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 20TH JANUARY 2009 / 30TH POUSHA 1930 Crl.Rev.Pet.No. 4024 of 2008(C) ------------------------------- AGAINST THE ORDER OF SUB DIVISIONAL MAGISTRATE, PALAKKAD IN MC.NO.9/2007 DATED 7.11.2008 ------------------------- REVISION PETITIONER/APPELLANT/ACCUSED: -------------------------- M.A.SALAM, AGED 54 YEARS, S/O.HASSAN MOHAMMED, THANDANARA LAKSHAM VEEDU COLONY, KOLLENGODU, PALAKKAD DISTRICT. BY ADV. SRI.V.M.KRISHNAKUMAR SMT. P.A. ANITHA RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE: --------------------- 1. KUNJAN, S/O.CHAMI, THANDANARA, ANAMARY P.O., KOLLENGODU, PALAKKAD. 2. VIJAYAN, S/O.MURUKAN, THANDANARA, ANAMARY P.O., KOLLENGODU, PALAKKAD. 3. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. C.M. NAZAR FOR R3 THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 20/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR,J. ------------------------------------------------- CRL.R.P.NO.4024 OF 2008 -------------------------------------------------- Dated this the 20th day of January, 2009 O R D E R Revision petitioner is challenging the order passed by the Sub Divisional Magistrate, Palakkad dropping proceedings under section 133 of Code of Criminal Procedure based on a petition filed by the revision petitioner to cause removal of the obstruction made by first respondent across the road alleging that it was being used for ingress and egress by the inhabitants of One Lakh House Colony. The Sub Divisional Magistrate, Palakkad as per order dated 5.12.2006 directed first respondent to remove the obstruction within seven days. That order was challenged before this Court in Crl.R.P.4440 of 2006. As per order dated 7.3.2007 this Court set aside the order and directed Sub Divisional Magistrate to reconsider the matter affording opportunity to both sides to adduce evidence. The impugned order was passed thereafter. As per the order, learned Magistrate dropped the proceedings holding that the right claimed by the revision petitioner is a right of easement as is clear from Ext.D10 and as no public right is involved, proceedings under section 133 can only be dropped. The order is challenged in this revision petition filed under section 397 and 401 of Code of Criminal Procedure. 2. Learned counsel appearing for revision petitioner was heard. CRRP 4024/2008 2 3. The argument of the learned counsel is that the inhabitants of One Lakh House Colony have a right of way in the property and first respondent is not entitled to cause obstruction and learned Magistrate should have proceeded under section 145 and directed removal of the obstruction caused by first respondent and should have found that an order is to be passed under section 145 of Code of Criminal Procedure. 4. On hearing the learned counsel and going through the impugned order passed by the Sub Divisional Magistrate, I find no reason to interfere with the order. As rightly found by the Sub Divisional Magistrate revision petitioner and inhabitants of One Lakh House Colony is claiming right of a way. The said right is claimed not on the basis that it is a public way, but a right of easement. Therefore proceedings under section 133 will not lie. Though learned counsel argued that proceedings should have been under section 145 of Code of Criminal Procedure for the reason that a breach of peace exists, in respect of the right to use the way, so long as there is no dispute with regard to possession, proceedings under section 145 cannot be initiated. In such circumstances revision is dismissed. M. SASIDHARAN NAMBIAR, JUDGE okb