IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 5TH APRIL 2011 / 15TH CHAITHRA 1933 Crl.MC.No. 1040 of 2011() ------------------------------------ PETITIONER(S): ------------------------- 1. MOHAMMED ABDUL SATHAR SAIT, S/O. HAJI SASSAN YACOOB SAIT, AGED 68 YEARS, UPPUKKOTTIL BUNGLOW, KAYAMKULAM MURI, KAYAMKULAM. 2. MRS. FARHATH ABDUL SATHAR, W/O. MOHAMMED ABDUL SATHAR SAIT, UPPUKKOTTIL BUNGLOW, KAYAMKULAM MURI, KAYAMKULAM. BY ADVS. SRI.M.V.THAMBAN SRI.R.REJI SMT.THARA THAMBAN SRI.B.BIPIN SMT.REVATHY P.NAIR RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031. 2. THE REVENUE DIVISIONAL OFFICER, CHENGANNUR - 689 121. 3. PATHIYOOR NAZER, PUTHETHA VEEDU, PATHIYOOR, ALAPPUZHA DISTRICT - 690 552 4. LATHA, MANGALATHU HOUSE, PATHIYOOR, ALAPPUZHA - 690 552. R1 & R2 BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 05/04/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.1040 of 2011 -------------------------------------- Dated this the 5th day of April, 2011. ORDER Petitioners are B parties in proceeding No.E-1756 of 2010 of the Sub Divisional Magistrate, Chengannur under Section 133 of the Code of Criminal Procedure (for short, “the Code”). A parties in the said proceeding preferred a complaint to the Sub Divisional Magistrate alleging that petitioners caused unlawful obstruction of a chal through their property. The Sub Divisional Magistrate issued Annexure-A5, conditional order directing petitioners to restore the chal or to show cause why the order shall not be executed. Accordingly, petitioners appeared before the Sub Divisional Magistrate and gave Annexure- A6, reply (under Section 137(1) of the Code. Prayer in this petition is to quash Annexure-A5, conditional order and all proceedings initiated by the Sub Divisional Magistrate pursuant to that order. Learned counsel submits that title deeds produced by the petitioners would show that when they purchased the property there was no water chal through the said property, three civil suits are pending concerning the same matter and that civil court has passed an order of status quo. But disregarding these cases the Sub Divisional Magistrate is proceeding with the enquiry. Learned counsel has invited my attention to the photographs produced (Annexure-A1) to contend that there is no water chal Crl.MC No.1040/2011 2 through the property of petitioner. 2. Even as per the submission of petitioners the civil court has not disposed of the cases finally and there is only an interim order directing parties thereto to maintain status quo. As revealed from the records placed before me, the Sub Divisional Magistrate issued a conditional order under Section 133(1)(a) of the Code and in answer to that conditional order, petitioners have shown cause. When the existence of water chal or public right in respect of that water chal is denied, the Sub Divisional Magistrate has to conduct an enquiry under Section 137(1) of the Code and enter a finding whether denial of public right is bonafide. If denial of public right is found bonafide the Sub Divisional Magistrate by virtue of Section 137(2) of the Code has to stay proceeding until the matter is decided by a competent court. The Sub Divisional Magistrate could proceed to conduct the enquiry under Section 138 of the Code only if he finds that denial of public right is not bonafide. What I understand from the submission of learned counsel is that the enquiry is now going on under Section 137(1) of the Code. It is open to the petitioners to produce all relevant documents before the Sub Divisional Magistrate and show that there was no water chal through the said property and that there is no public right involved in the matter. Based on the materials produced the Sub Divisional Magistrate has to pass appropriate order Crl.MC No.1040/2011 3 under Section 137 of the Code. There is no reason why I should interfere with the proceeding at this stage and quash Annexure-A5, order and the subsequent proceeding. Without prejudice to the right of petitioners to defend the proceeding against them as provided under law, this Criminal Miscellaneous Case is closed. THOMAS P.JOSEPH, Judge. cks