IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 13TH OCTOBER 2008 / 21ST ASWINA 1930 Crl.Rev.Pet.No. 3676 of 2007() ------------------------------------------ MC.69/2007 of SUB DIVISIONAL MAGISTRATE , MUVATTUPUZHA. .................... REVN. PETITIONER: COUNTER PETITIONER ----------------------------- P.V.JOSEPH, PAINAPPILLIL HOUSE, KEERAMPARA P.O. BY ADV. SRI.R.BINU SASTHAMANGALAM SRI.PRASANTH M.P RESPONDENTS: PETITIONERS & STATE ------------------------- 1. KUMARAN K.S., KARIYATHUPARAMBIL HOUSE, KEERAMPARA VILLAGE. 2. M.SURESH, MUTHALATHOTTATHIL HOUSE, KEERAMPARA VILLAGE. 3. ASHA ELDHOSE, CHATHURUTHIL HOUSE, KEERAMPARA VILLAGE. 4. SUB DIVISIONAL MAGISTRATE, MUVATTUPUZHA. 5. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. ADV. SRI.C.ARUN PRASANTH FOR R1 TO 3 SRI.ELDHOSE ELIAS FOR R1 TO 3 PUBLIC PROSECUTOR SRI.C.M.NAZER THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 3676 OF 2008 ............................................ DATED THIS THE 13th DAY OF OCTOBER, 2008 ORDER Petitioner is challenging the final order passed by Sub Divisional Magistrate under Section 138(1) of Code of Criminal Procedure directing him to obviate the nuisance either by constructing a safety tank or by demolishing the existing tank and constructing a new one on a petition filed by respondents 1 to 3 on 21.7.2007 alleging that contaminated water from the latrine tank of the petitioner flows to the public road and thereafter to the wells of first respondent and others and causes serious ill-health hazardous situation, and alleging that health and Panchayat authorities are not taking action, Sub Divisional Magistrate called for a report from the Village Officer. On receipt of the report, satisfying that public nuisance is caused, based on the order dated 1.8.2007, directed petitioner to obviate the nuisance or to appear and show cause why the order shall not be made absolute under Section 133(1) of Code of Criminal Procedure. The case was posted for appearance of petitioner to 17.8.2007. Sub Divisional Magistrate, as per order dated 15.9.2007, made the conditional order absolute on the ground that petitioner did not appear or file any objection. It was held that report of Village Officer shows that there is nuisance from the contaminated water of the latrine tank of the CRRP 3676/2007 2 petitioner and it is necessary to avoid the public nuisance. Case of petitioner is that on the day previous to the date fixed for his appearance, he had plastered the safety tank and therefore no further nuisance is caused and without taking note of this fact, an order was passed under Section 138 of Code of Criminal Procedure and it is to be set aside. In view of the submission, learned Public Prosecutor was directed to file a report after getting the matter ascertained by Sub Divisional Magistrate, Moovattupuzha. 2. A report was thereafter filed by Sub Divisional Magistrate stating that a report was called for from the Village Officer, who filed the report after inspection stating that there is no leakage from the latrine tank since petitioner has done the necessary work. Sub Divisional Magistrate submitted the report stating that nuisance from the tank has been obviated and the complaint of respondents 1 to 3 was solved. Learned counsel appearing for petitioner submitted that in view of the report, the order passed under Section 138 of Code of Criminal Procedure is to be set aside and the proceedings be dropped. Learned Public Prosecutor also submitted that in view of the report submitted by Sub Divisional Magistrate stating that the nuisance was obviated, necessary orders may be passed. 3. The report submitted by Sub Divisional Magistrate dated 22.9.2008 does not show that the inspection conducted by the Village CRRP 3676/2007 3 Officer was in the presence of respondents 1 to 3 or with notice to them. In such circumstances, based on the report alone, proceedings cannot be dropped. As the order under sub-section (1) of Section 138 of Code of Criminal Procedure was passed on the failure of the petitioner to appear and as it was contended by the petitioner that he had obviated the nuisance as directed by the Magistrate under section 133 of Code of Criminal Procedure, and report submitted by Sub Divisional Magistrate, as directed by this court, supports the contention, the order dated 15.9.2007 is quashed. M.C.69 of 2007 is remanded to Sub Divisional Magistrate, Moovattupuzha. Sub Divisional Magistrate is to ascertain whether the nuisance has been obviated as stated in the report dated 22.9.2008, after giving opportunity to respondents 1 to 3 to raise objections, if any, and pass appropriate order in accordance with law. It is made clear that if the nuisance has been obviated, Sub Divisional Magistrate is competent to drop the proceedings. M.SASIDHARAN NAMBIAR, JUDGE lgk/-