IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 16TH OCTOBER 2008 / 24TH ASWINA 1930 WP(C).No. 2938 of 2006(Y) ------------------------- MC.168/2005 of SUB DIVISIONAL MAGISTRATE,THRISUR .................... PETITIONER(S): --------------- RAMANI JAYARAM, AGED 61 YEARS, W/O.JAYARAM, VALIYAPARAMBIL(AMRUTHENDU) HOUSE, CHEMPUKAVU P.O., THRISSUR. BY ADV. SRI.DINESH MATHEW J.MURICKEN RESPONDENT(S): --------------- 1. SUB DIVISIONAL MAGISTRATE, THRISSUR. 2. AMMINI, W/O.RAGHAVAN, MANALMARIYIL HOUSE, CHERUMUKKU DESOM, THRISSUR VILLAGE. 3. DR.V.K.MOHANAN, ASST. PROFESSOR, MEDICAL COLLEGE, THRISSUR. 4. RAJESH GEORGE, MAROYI HOUSE, CHERUMUKKU DESOM, THRISSUR. BY PUBLIC PROSECUTOR SMT. PUSHPALATHA M.K. FOR R1 ADV. SRI.G.SREEKUMAR (CHELUR) FOR R2 TO 4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE WRITTEN COMPLAINT LODGED BEFORE THE FIRST RESPONDENT DATED 22.5.2004 EXT.P2 TRUE COPY OF THE ORDER PASSED BY THE FIRST RESPONDENT DATED 1.6.2005 EXT.P3 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER DATED 24.6.2005 //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.2938 of 2006 Y -------------------------------------- Dated this the 16th day of October, 2008. JUDGMENT Heard counsel for writ petitioner and the Public Prosecutor. There is no representation for respondents 2 to 4. 2. Respondents 2 to 4 filed Ext.P1, complaint before the first respondent seeking action under Section 133 of the Code of Criminal Procedure (for short, ‘the Code’). According to them, the pathway being used by them was obstructed by the writ petitioner. First respondent obtained report of the Tahsildar concerned and issued Ex.P2, conditional order dated 1.6.2005 calling upon the petitioner to comply with the said order or to show cause why conditional order should not be made absolute. Pursuant to Ext.P2, petitioner appeared before the first respondent and filed counter statement (Ext.P3) wherein it is inter alia contended that the disputed pathway is private way of the petitioner. Petitioner states that disregarding the provisions of Section 137(1) of the Code, first respondent is proceeding to conduct enquiry under Section 138 of the Code and pass orders. Petitioner therefore, seeks a direction to the first respondent to comply with the provisions of Section 137 (1) of the Code before going into the enquiry under Section 138 of the Code. 3. I find from Ext.P3 that writ petitioner has raised a contention that the way in question is her private way. In other words, existence of public WP(C) No.2938/2006 2 right over disputed way has been denied by the petitioner. In that situation, Section 137 (1) of the Code required the first respondent to conduct enquiry into the existence of public right. It is only when it is found in such enquiry that there is no reliable evidence in support of the denial of public right that first respondent could pass on to the enquiry under Section 138 of the Code. First respondent has to follow the procedure prescribed under the Code before passing final orders in the matter. Writ Petition is therefore, disposed of directing first respondent to conduct enquiry as provided under Section 137 (1) of the Code before initiating further action on the matter. THOMAS P.JOSEPH, JUDGE. cks