IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 21ST JUNE 2011 / 31ST JYAISHTA 1933 Crl.MC.No. 625 of 2011() ------------------------ MC.517/10/D OF SUB DIVISIONAL MAGISTRATE FORTKOCHI .................... PETITIONER(S): COUNTER PETITIONERS: ------------------------------------------------------------- 1. REGHU, AGED 45 YEARS, S/O.LAKSHMANAN, RESIDING AT VELIYATHU VEETTIL, CHERANALLUR, ERNAKULAM, COCHIN-682 034. 2. SURESH, AGED 42 YEARS, S/O.LAKSHMANAN, RESIDING AT VELIYATHU VEETTIL, CHERANALLUR, ERNAKULAM, COCHIN-682 034. BY ADV. SRI.PEEYUS A.KOTTAM RESPONDENT(S): STATE AND COMPLAINANT: ------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, COCHIN-682 031. 2. SUSHEELA SATHYASEELAN, AGED ABOUT 45 YEARS, RESIDING AT VENATTU HOUSE, CHERANALLUR, ERNAKULAM, COCHIN-682 034. BY PUBLIC PROSECUTOR SRI.JAYASURYA R2 BY ADVS. SRI.SANTHOSH PETER (MAMALAYIL) R2 SRI.P.N.ANOOP THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 21/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 625 of 2011() APPENDIX PETITIONERS ANNEXURES: ANNEXURE-A-1: TRUE COPY OF COMPLAINT DATED 30.10.2010 LODGED BY 2ND RESPONDENT IN MC NO.517/2010/D BEFORE SUB DIVISIONAL MAGISTRATE FORT COCHIN. ANNEXURE-A-2: TRUE COPY OF CONDITIONAL ORDER DATED 04.12.2010 ISSUED BY SUB DIVISIONAL MAGISTRATE FORT COCHIN IN MC NO.517/2010/D. ANNEXURE-A-3: TRUE COPY OF OBJECTION DATED 25.01.2011 FILED BY PETITIONERS BEFORE THE SUB DIVISIONAL MAGISTRATE FORT COCHIN IN MC NO.517/2010/D. ANNEXURE-A-4:TRUE COPY OF FINAL ORDER DATED 07.02.2011 ISSUED BY SUB DIVISIONAL MAGISTRATE FORT COCHIN. RESPONDENTS ANNEXURES: NIL //TRUE COPY/ / P.A.TO JUDGE MNS THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.625 of 2011 -------------------------------------- Dated this the 21st day of June, 2011. ORDER Petitioners challenge Annexure-A4, order dated February 7, 2011 in M.C.No.517/2010/D of the Sub Divisional Magistrate, Fort Kochi under Section 138 of the Code of Criminal Procedure (for short, “the Code”). The second respondent filed the said petition before the Sub Divisional Magistrate alleging that petitioners obstructed the pathway used by him and caused nuisance by dumping cow dung on the said pathway. The Sub Divisional Magistrate issued a conditional order under Section 133 of the Code on November 4, 2010 based on the report submitted by the Village Officer, Cheranellur. Notice was issued to petitioners to remove the obstruction or show cause before the Sub Divisional Magistrate on January 7, 2011 why the conditional order shall not be made absolute. On January 7, 2011 second respondent told the Sub Divisional Magistrate that the order is not complied. Thereon the Sub Divisional Magistrate passed the impugned order purporting to be under Section 138 of the Code making the conditional order absolute. That order is under challenge. Learned counsel contended that the order is illegal since the Sub Divisional Magistrate had not followed the procedure prescribed under the Code. 2. Since the dispute relates to the alleged right of use of a pathway, it must come under Section 133(1)(a) of the Code for the Sub Divisional Crl.MC No.625/2011 2 Magistrate to get jurisdiction in the matter. On appearance of the party to whom the conditional order is issued, the Sub Divisional Magistrate has to follow the procedure under Section 137 of the Code only when a finding is entered that the denial of public right is bona fide, the Sub Divisional Magistrate could pass on the enquiry under Section 138 of the Code. In the present case conditional order directed petitioner to appear on January 7, 2011 and show cause. It is seen that the Sub Divisional Magistrate has passed the impugned order under Section 138 of the Code, on the second respondent complaining that the conditional Order has not been complied. That procedure is illegal and cannot be sustained. The matter has to therefore go down to the Sub Divisional Magistrate to follow the procedure prescribed under the Code and as above stated. Resultantly this Criminal Miscellaneous Case is allowed. Order dated February 7, 2011 in M.C.No.517/2010/D of the Sub Divisional Magistrate, Fort Kochi is set aside and the matter is remitted to the Sub Divisional Magistrate to follow the procedure prescribed under Sections 137 and 138 of the Code. The Sub Divisional Magistrate shall question petitioner under Section 137(1) of the Code and conduct enquiry, in case of denial of public right and proceed in the matter as provided therein. THOMAS P.JOSEPH, Judge. cks