IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 23RD SEPTEMBER 2009 / 1ST ASWINA 1931 Crl.MC.No. 2926 of 2009 -------------------------------------- CMP.16/2008 of SUB DIVISIONAL MAGISTRATE, PERINTHALMANNA .................... PETITIONERS/B PARTIES: 1. MAMMAD, S/O. MOHAMMED, AGED 63 YEARS, AYAMKUDIMOTTAMMAL HOUSE, THURAKKAL KUNNATH, CHERUVAYOOR AMSOM, DESOM, VAZHAKKAD, ERNAD TALUK, MALAPPURAM DIST. 2. PATHUMMA, W/O. MAMMAD, AGED 55 YEARS, DO. DO. BY ADV. SRI.P.SAMSUDIN RESPONDENTS/A PARTIES/STATE: 1. SHAMSUDHIN, S/O. AHAMMEDKUTTY, THURAKKAL KUNNATH, VALILLAPUZHA, VAZAKKAD P.O., ERNAD TALUK, MALAPPURAM DIST. 2. SHAHANAS, W/O. SHAMSUDIN, DO. DO. 3. SALEES, S/O. MOIDEENKUTTY, DO. DO. 4. BASHEER, S/O. MOIDEENKUTTY, DO. DO. 5. THE SUB DIVISIONAL MAGISTRATE, PERINTALMANNA. 6. STATE OF KERALA REP. BY THE SUB INSPECTOR OF POLICE, VAZHAKKAD, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.K.M.FIROZ FOR R1-4 BY PUBLIC PROSECUTOR SRI.S.U.NAZAR FOR R5 & R6 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 23/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.2926 of 2009 -------------------------- ORDER Petitioners are the B parties in C.M.P.No.16/2008 on the file of Sub Divisional Magistrate, Perinthalmanna. This petition is filed to quash Annexure-A5 order passed by the Sub Divisional Magistrate on 20.8.2009, directing to restore the road to its pre-existing position, for the reason that subsequent to the conditional order, the road has been encroached upon. 2. Petition was admitted on 31.8.2009 and records from the Sub Divisional Magistrate was called for. Records were received. 3. Learned counsel appearing for the petitioners, respondents 1 to 4 and learned Public Prosecutor were heard. 4. Records show that based on the report received by the Sub Divisional Magistrate, a conditional order was passed under Section 133(1) of Code of Criminal Procedure on 25.10.2008, directing the petitioners to CRMC 2926/09 2 remove the obstruction caused to Valillapuzha- Thurakkal-Kunnath Public Road or to show cause why the conditional order shall not be enforced. The records also show that petitioners, through their counsel, appeared and a written objection was also filed contending that no public right is involved and the attempt is only to widen the way by encroaching upon their property and proceedings under Section 133(1) of Code of Criminal Procedure cannot be initiated. 5. The records further show that thereafter a report was called for from the Tahsildar, on inspection and on 20.5.2009, when the case was posted for the report of the Tahsildar, for the reason that inspection could not be conducted due to the general election exigencies, it was adjourned to 10.6.2009 stating that inspection is to be conducted on 30.5.2009. On 10.6.2009, the case was adjourned to 9.9.2009, stating that inspection is to be conducted on 14.8.2009. In the meanwhile, third respondent filed a petition before the Sub Divisional Magistrate stating that the road has been encroached upon. Petition is seen dated 17.8.2009. Along with that petition, a request, signed by the CRMC 2926/09 3 third petitioner and eight others, for inspection by the Sub Divisional Magistrate was also filed. It is seen that on receipt of that complaint, a note was placed before the Sub Divisional Magistrate stating that there is a prayer for restoration of the way. Sub Divisional Magistrate, on that office note, passed an order stating that the way should be restored to its original position. It is based on that report, Annexure-A5 order was passed, which is impugned in this petition. 6. The records establish that the Sub Divisional Magistrate did not follow the procedure provided under Sections 137 and 138 of Code of Criminal Procedure. When A party filed a petition alleging that subsequent to the conditional order there was encroachment of the way, even without granting opportunity to the B parties to be heard, Sub Divisional Magistrate passed an order based on the office note. The order is per se illegal. 7. When a conditional order is passed under Section 133 of Code of Criminal Procedure directing counter petitioners to show cause why the conditional order shall not be made absolute and counter CRMC 2926/09 4 petitioners appeared and showed the cause, under Section 137 of Code of Criminal Procedure, Sub Divisional Magistrate is bound to question the counter petitioners, whether they deny the existence of a public right, in respect of the way and if they deny, before proceeding under Section 138, Magistrate is bound to consider whether there is any reliable evidence in support of such denial. If there is reliable evidence in support of such denial, Magistrate is bound to stay the proceedings and only if it is found that there is no reliable evidence in support of the denial of public right, Magistrate can proceed as provided under Section 138 of Code of Criminal Procedure. Even under Section 138, Magistrate is bound to record the evidence, as in a summons case and can thereafter pass the final order, either making the order absolute as it is or with modification or drop the proceedings. Sub Divisional Magistrate cannot pass an order for restoration of the way, as has been done under Annexure-A5 order, without granting an opportunity to the petitioners to raise their objection. When it is seen from the records that CRMC 2926/09 5 petitioners disputed the public right, before passing any further order, Sub Divisional Magistrate has to record the plea as provided under Section 137 and conduct an inquiry as provided under sub-section (2) of Section 137 and then only can proceed under Section 138 or consider any application for restoration of the way. 7. Annexure-A5 order is quashed. Sub Divisional Magistrate is directed to consider the petition in accordance with law, following the procedure provided under Sections 137 and 138 of Code of Criminal Procedure, as stated earlier and pass appropriate order. Sent back the records to the Sub Divisional Magistrate, Perinthalmanna forthwith. 23rd September, 2009 (M.Sasidharan Nambiar, Judge) tkv