IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 13TH OCTOBER 2008 / 21ST ASWINA 1930 Crl.Rev.Pet.No. 1304 of 2001(B) ------------------------------ MC.66/2001 OF THE COURT OF THE SUB DIVISIONAL MAGISTRATE, MUVATTUPUZHA .................... REVN. PETITIONERS/COUNTER PETITIONERS: --------------------------------------------------- 1. PATHROSE PAPPACHAN THELEKKATTU, CHERANALLUR KARA, KODANAD VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT 2. DEVASSY XAVIER, THELEKKATTU, CHERANALLUR KARA, KODANAD VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY SRI.PIRAPPANCODE V.S.SUDHIR RESPONDENTS/PETITIONERS AND STATE: --------------------------------------------- 1. OUSEPH JOSE, THOTTANKARA, CHERANALLUR KARA, KODANAD VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT 2. JOMY PAUL, ATTUPURAM, CHERANALLUR KARA, KODANAD VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT 3. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, OFFICE OF THE ADVOCATE GENERAL, ERNAKULAM. ADV. SRI.T.P.KELU NAMBIAR (SR.) FOR R1,2 SRI.M.GOPIKRISHNAN NAMBIAR FOR R1,2 SMT.T.RESMI DAMODARAN FOR R1,2 PUBLIC PROSECUTOR SMT.PUSHPALATHA M.K. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.Rev.Pet.No. 1304 of 2001(B) ORDER ON CRL.M.P.NO.6193/2001 IN CRL.R.P.NO.1304/2001 DISMISSED. 13.10.2008 SD/-THOMAS P.JOSEPH, JUDGE // TRUE COPY // P.A TO JUDGE. THOMAS P.JOSEPH, J. =================== Crl.R.P. No.1304 of 2001 =============================== Dated this the 13th day of October, 2008. O R D E R Heard both sides. 2. Revision petitioners who are the counter petitioners in M.C.No.66/2001 are aggrieved by the order dated 8.11.2001 which made absolute a conditional order passed by the Sub Divisional Magistrate on 27.10.2001. Proceedings were initiated on the strength of a report from the village officer, Kodanad in respect of a way which according to the respondents is having a width of 12 ft. and through which they were gaining access to their paddy fields. After the conditional order was passed, the case was posted for hearing on 1.11.2001. There was no sitting on that day and hence case was adjourned to 8.11.2001. On that day, only respondents appeared before the Sub Divisional Magistrate. The Sub Divisional Magistrate taking into account the result of his local inspection and report of the village officer, passed the impugned order which, learned counsel for revision petitioner submitted is illegal. Learned counsel submitted that Crl.R.P. No.1304 of 2001 2 revision petitioner No.1 filed a civil suit against the respondents as O.S.No.244/2001 before the Munsiff's Court, Perumbavoor on 24.10.2001 and obtained an interim order of injunction concerning the disputed way. According to the learned counsel, the Sub Divisional Magistrate therefore, should not have passed the impugned order. Counsel for the respondents submitted that the suit was dismissed in their favour but of course, an appeal is pending. According to the learned counsel, the civil court found that the disputed way is through puramboke land over which public have right of access. Respondents are however prepared to abide by the ultimate decision in the civil case and initiate necessary steps consequent to such decision. 3. It is seen from the records that the revision petitioners had not filed any counter statement before the Sub Divisional Magistrate. Instead, revision petitioners filed a petition before the Sub Divisional Magistrate on 31.10.2001 requesting to stay the proceedings in the light of the institution of the civil suit. 4. So far as the impugned order is concerned, it is liable to be set aside for the reason that no enquiry as contemplated Crl.R.P. No.1304 of 2001 3 under Section 138 of the Code of Criminal Procedure was conducted. Instead, Sub Divisional Magistrate merely acted upon the result of his local inspection and report of the village officer. The report of the village officer cannot ipso facto be taken as evidence. That report becomes evidence when the village officer is examined and the report is proved through him and if the village officer concerned is not available for giving evidence, the report is proved in any other manner provided under law. Therefore the order under challenge is liable to be set aside. 5. Going by Section 137 of the Code, when the existence of public right in respect of the disputed way is denied, Sub Divisional Magistrate has to conduct an enquiry as contemplated under Section 137(1) and if in such enquiry the Sub Divisional Magistrate finds that there is reliable evidence in support of the denial of public right, he has to stay the proceedings until the existence of such right is decided by a competent civil court. In the case in hand, revision petitioners are not seen to have filed any counter statement denying the public right, but requested to stay the proceedings as aforesaid. In such circumstances, I am Crl.R.P. No.1304 of 2001 4 inclined to set aside the order under challenge and remand the case to the Sub Divisional Magistrate for disposal as provided under law, after giving the revision petitioners an opportunity to file counter statement. Resultantly, this revision petition is allowed in the following terms:- i) Final order dated 8.11.2001 which is under challenge in this revision petition is set aside. ii) The case is remanded to the court of Sub Divisional Magistrate, Moovattupuzha for disposal as provided under law after giving revision petitioners an opportunity to file counter statement if any, regarding the disputed pathway and right claimed by the respondents over it. iii) In case the revision petitioner deny the existence of public right, Sub Divisional Magistrate will conduct enquiry as contemplated under Section 137(1) of the Crl.R.P. No.1304 of 2001 5 Code of Criminal Procedure and pass appropriate orders. iv) Parties shall appear before the Sub Divisional Magistrate on 28.11.2008. THOMAS P.JOSEPH, JUDGE. bkn/-