IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 14TH DECEMBER 2009 / 23RD AGRAHAYANA 1931 Crl.MC.No. 3713 of 2009() ------------------------- F.1224/2005 of SUB DIVISIONAL MAGISTRATE, ALAPPUZHA .................... PETITIONER(S): RESPONDENTS: ------------------------------------------------- 1. OMANAKUTTY AMMA, THAMARAPPILLI, ERAMALLOOR, CHERTHALA. 2. JAYASREE, D/O.OMANAKUTTY AMMA, -DO-. 3. SURESH, -DO-. 4. VIJAYALAKSHMI, D/O.OMANAKUTTY AMMA, -DO-. BY ADVS. MR.K.V.SOHAN, SMT.SREEJA SOHAN.K. RESPONDENT(S): PETITIONERS: -------------------------------------------------- 1. SAJEEV KUMAR M.R., MUNDAKKAL HOUSE, ERAMALLOOR, CHERTHALA. 2. VASU,LAKSHAM VEEDU HOUSING COLONY, ERAMALLOOR, CHERTHALA. 3. V.RAVEENDRAN, CHERUVELITHARA, ERAMALLOOR, CHERTHALA. 4. VAPPI CHERUVELITHARA, ERAMALLOOR, CHERTHALA. 5. PURUSHOTHAMAN, SAVITHRI NILAYAM, EZHUPUNNA, CHERTHALA. 6. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 TO R5 BY ADVS.MR.P.SANKARAN NAIR, MR.T.V.AJAYAKUMAR. R6 BY PUBLIC PROSECUTOR MR. P.A. SALIM THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 14/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. ------------------------------------------ Crl.M.C.NO. 3713 OF 2009 ------------------------------------------ Dated 14th December 2009 O R D E R Petitioners are counter petitioners in F.1224/2005 on the file of Sub Divisional Magistrate, Alappuzha. The proceedings were initiated under Section 133 of Code of Criminal Procedure. By Annexure-IV order dated 20/2/2008 Sub Divisional Magistrate has originally dropped the proceedings on the ground that it is only a private pathway. Petitioners before the Sub Divisional Magistrate challenged that order before this court in Crl.R.P.1687/2008. By Annexure-V order, this court quashed the order finding that Sub Divisional Magistrate has not proceeded under the Code of Criminal Procedure. The Sub Divisional Magistrate was directed to pass conditional order in terms of Section 133 and proceed with the case in accordance with law. Annexure-VI order was passed thereafter directing the petitioner to appear before the Sub Divisional Magistrate on 4/9/2008, either to comply with the direction to remove the obstruction caused to a 12 links width of the way or to show cause why the order Crmc 3713/09 2 shall not be made absolute. Petitioners filed Annexure- VII petition to stay the proceedings under Section 137 (2) of Code of Criminal Procedure which was dismissed by Annexure-IX order holding that the order was passed strictly in compliance with Annexure-V order passed by this court. This petition is filed under Section 482 of Code of Criminal Procedure to quash Annexure-IX order and to direct the Sub Divisional Magistrate to stay the proceedings till the disposal of O.S.702/2007 pending before Additional Munsiff court, Cherthala. 2. Learned counsel appearing for petitioners and respondents 1 to 5 and learned Public Prosecutor were heard. 3. Learned counsel appearing for petitioners pointed out that petitioners did not admit the public way over the disputed six links width of land, as a way as permitted to be used. Learned Magistrate has not questioned them as provided under Section 137(1) of Code of Criminal Procedure when they appeared and O.S.702/2007 is pending before Additional Munsiff court, Cherthala and Annexure-X copy of the plaint establishes that petitioners are disputing the public way in respect of that property Crmc 3713/09 3 and in such circumstances, learned Magistrate is not competent to decide the question before civil court decides the question and therefore, Annexure-IX order is to be quashed and proceedings is to be stayed till disposal of O.S.702/2007. 4. Learned counsel appearing for respondents argued that petitioners did not dispute the existence of public way and subsequent institution of the suit will not affect the proceedings and in such circumstances, proceedings cannot be stayed as sought for. Learned counsel also argued that even if, there is any procedural defect, Sub Divisional Magistrate can be directed to proceed in accordance with law. It is also argued that in respect of remaining portion of the way, this court has already found that it is a public way and in such circumstances, existence of public way cannot be disputed. 5. Section 137 of Code of Criminal Procedure provides the procedure where existence of public right is denied. Under Section 135 of the Code, person against whom an order is passed under Section 133 of Code of Criminal Procedure shall either perform within the time and in the manner specified in the Crmc 3713/09 4 order, the act directed thereby or shall appear in accordance with such order and show cause against the same. Under Sub Section 1 of Section 137, where an order is made under Section 133 for the purpose of preventing obstruction to the public, in the use of any way, on appearance of the person against whom order was made, Magistrate is bound to question him as to whether he denies the existence of any public right in respect of the way and then only he can proceed as provided under Section 138. Under Sub Section 2 if on any such inquiry the Magistrate finds that there is any reliable evidence in support of such denial of existence of public right, Magistrate is bound to stay the proceedings, until the matter of the existence of such right has been decided by the competent court. On the other hand, if on such enquiry he finds that there is no reliable evidence in support of such denial, he is bound to proceed as provided under Section 138. 6. As is clear from the order passed by the Sub Divisional Magistrate, Annexure-VI order passed under Section 133 petitioners directed the petitioner to appear before him on 24/9/2008 and show cause why the conditional order shall not made absolute. As Crmc 3713/09 5 provided under Sub Section 1 of Section 137, Sub Divisional Magistrate should have questioned the petitioners whether they are denying the existence of the public right or not. If petitioners deny, Sub Divisional Magistrate should conduct an inquiry as provided under Sub Section 1 to find out whether there is any reliable evidence in support of such denial. Only if Magistrate finds that there is no such reliable evidence in support of the denial of existence of public right, Sub Divisional Magistrate can proceed under Section 138. As the Sub Divisional Magistrate has not questioned the petitioners, Sub Divisional Magistrate is necessarily to be directed to question the petitioners and if they deny, to conduct inquiry as provided under Section 137 and then only to proceed under Section 138. If Sub Divisional Magistrate on enquiry finds that there is reliable evidence for such denial, even without application filed by petitioners, he is bound to stay the proceedings till the matter of existence of such right has been decided by the competent court. It is clear from Annexure-X plaint that petitioners are disputing the public right of way in respect of the disputed extent of land and in such Crmc 3713/09 6 circumstances, if the Magistrate finds that there is reliable evidence in respect of the denial, in view of Annexure-X plaint, Sub Divisional Magistrate cannot proceed as provided under Section 138. The petition is disposed directing Sub Divisional Magistrate to question the petitioners and conduct an enquiry under Section 137(1) within two months from the date of receipt of copy of this order. M.SASIDHARAN NAMBIAR, JUDGE. uj.