IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 6TH OCTOBER 2010 / 14TH ASWINA 1932 Crl.MC.No. 3071 of 2009(B) -------------------------------------- [CRL.R.P.NO.54/2008 OF SESSIONS COURT, KOTTAYAM, B.6165/2007 OF SUB DIVISIONAL MAGISTRATE COURT, KOTTAYAM] .................... PETITIONER/REVISION PETITIONER/RESPONDENT/B PARTY: ---------------------------------------------------------------------------------------- WILSON JACOB, MANAGING DIRECTOR, KOTTAYAM PORT AND CONTAINER TERMINAL LTD., KOTTAYAM DISTRICT. BY ADVS. SRI.P.VIJAYA BHANU, SRI.M.REVIKRISHNAN. RESPONDENTS/COUNTER PETITIONERS/COMPLAINANTS/A PARTY: --------------------------------------------------------------------------------------------------- 1. ANTONY, CHAMAKULATHU, MUTTAM, NATTAKOM KARA, NATTAKOM VILLAGE. 2. FRANCIS, CHAMAKULATHU, MUTTAM, NATTAKOM KARA, NATTAKOM VILLAGE. 3. AUGUSTINE, CHAMAKULATHU, MUTTAM, NATTAKOM KARA, NATTAKOM VILLAGE. 4. K.N.RATHEESH, KALLUKADAVIL, MUTTAM, NATTAKOM KARA, NATTAKOM VILLAGE. 5. AMBILI, KALLUKADAVIL, MUTTAM, NATTAKOM KARA, NATTAKOM VILLAGE. 6. ANANDHA MOHANDAS, CONVENER, VADAKKE MUTTAM PADASEKHARA NELLULPADAKA SAMITHI, MUTTAM, NATTAKOM KARA, NATTAKOM VILLAGE. CRL.M.C. NO. 3071/2009-B: 7. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 TO R5 BY ADVS. SRI.V.G.ARUN, SRI.T.R.HARIKUMAR, R7 BY PUBLIC PROSECUTOR SRI. P.A. SALIM. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 06/10/2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.M.C.NO.3071 OF 2009 --------------------------------------------- Dated 6th October, 2010 O R D E R On a petition filed by respondents 1 to 6 Sub Divisional Magistrate, Kottayam passed Annexure-A10 order purportedly under Section 138 of Code of Criminal Procedure directing the petitioner to restore the public thodu to its original position and also to restore the way which was being used by respondents 1 to 6 earlier. Petitioner challenged that order before Sessions Court, Kottayam in Crl.R.P.54/2008. By Annexure-A12 order, revision was dismissed. This petition is filed under Section 482 of Code of Criminal Procedure to quash Annexures-A10 and A12 orders. Crmc 3071/09 2 2. Learned counsel appearing for the petitioner and learned counsel appearing for respondents 1 to 6 and learned Public Prosecutor were heard. 3. Learned counsel appearing for the petitioner pointed out that though Annexure-A10 order was passed under Section 138 of Code of Criminal Procedure, the said order was passed without following the relevant procedure provided under the Code of Criminal Procedure and no conditional order was passed under Section 133 and no enquiry as provided under Sections 137 or 138 of Code of Criminal Procedure was conducted and therefore, the order is to be set aside. Learned counsel appearing for respondents 1 to 6 did not dispute the fact that there was no conditional order. It was also not disputed that Crmc 3071/09 3 petitioner was not questioned, whether he denies the public right or not. Question in such circumstances, is whether Annexure-A10 order could be taken as an order passed under Section 138 of Code of Criminal Procedure. 4. Section 133 of Code of Criminal Procedure enables the Sub Divisional Magistrate or Executive Magistrate, on getting information or receiving a report from the police officer and if he considers that it is fit to initiate proceedings under the Section, that any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel, which is or may be lawfully used by the public, to pass a conditional order requiring the person causing such obstruction to remove the obstruction within a time to be fixed in the order or if, he objects to do so Crmc 3071/09 4 to appear before himself or some other Executive Magistrate, subordinate to him at a time and place to be fixed by the order and show cause, in the manner provided thereafter, why the order should not be made absolute. Section 137 provides that where an order is made under Section 133 and the person against whom the order is passed appear, Magistrate shall question him as to whether he denies the existence of public right in respect of the way, river channel or place and if he denies, Magistrate before proceeding under Section 138 shall inquire whether there is any evidence in support of the denial of right. Only if, it is found on such inquiry that there is no evidence in support of the denial, Magistrate can proceed to record the evidence as provided under Section 138 of Code of Crmc 3071/09 5 Criminal Procedure. Under Section 138, Magistrate has to record the evidence as in a summons case and pass a final order either making the conditional order absolute with modification or without modification or drop the proceedings. As Sub Divisional Magistrate admittedly did not comply with the provisions, and the learned Sessions Judge did not consider these vital aspects Annexure-A10 order as confirmed in Annexure-A12 order can only be quashed. Petition is allowed. Annexure-A10 order passed by Sub Divisional Magistrate in B6165/2007 as confirmed by Additional Sessions Judge by Annexure-A12 order in Crl.R.P.54/2008 is quashed. It is made clear that Sub Divisional Magistrate has to pass a conditional order under Section 133 of Code of Criminal Crmc 3071/09 6 Procedure and thereafter follow the procedure provided under Sections 136, 137 and 138 of Code of Criminal Procedure and pass appropriate order in accordance with law. M.SASIDHARAN NAMBIAR, JUDGE. uj.