IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 2ND JULY 2010 / 11TH ASHADHA 1932 Crl.MC.No. 2036 of 2010() ------------------------- CMC.11/2002 of SUB DIVISIONAL MAGISTRATE, DEVIKULAM .................... PETITIONER(S): ------------------------- M.K.RAGHAVAN NAIR, RAGHUMANDIRAM, KADIKANDOM, KANJIRAVELY, MANNAMKANDOM VILLAGE. BY ADV. SRI.T.O.XAVIER RESPONDENT(S): ------------------------- 1. M.I.POULOSE, MARACHERRY PUTHEYATH, KADIKANDOM, KANJIRAVELY. 2. HYDROSE MOHAMMED NADUKUDY, KADIKANDOM, KANJIRAVELY, MANNAMKANDOM PANCHAYAT. 3. T.K.SASIDHARAN, THEVARAKKATILL, KADIKANDOM, MANJIRAVELLY, MANNAMKANDOM VILLAGE. 4. ANIL NARAYANPILLAI, KATHADURIL, KADIKANDOM, KANJIRAVELY, MANNAMKANDOM VILLAGE. 5. SASIDHARAN P.K. PADMALYAK, KADIKANDOM, KANJIRVELLY, MANNAKANDOM VILLAGE. 6. SUB DIVISIONAL MAGISTRATE, DEVIKULAM, IDUKKI DISTRICT. 7. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM ADV. SRI.PEEYUS A.KOTTAM FOR R1-5 PUBLIC PROSECUTOR SRI.KAMMAPPU THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 02/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = Crl.M.C..No.2036 of 2010 = = = = = = = = = = = = = = Dated this the 2 nd day of July, 2010 ORDER Heard both sides. 2. The petitioner, who was the opposite party in M.C.No.11/2002 on the file of the 6th respondent herein namely Sub Divisional Magistrate, Devikulam, challenges Annexure A3 order dated 21.4.2010 directing the petitioner to comply with the final order dated 9.10.2002 passed under Section 138 Cr.P.C. to remove the obstruction caused to the free flow of rain water by deviating the course of the water channel and to restore the water channel to its old position. The applicant namely the 1st respondent herein had earlier complained of non-implementation of the final order and that the petitioner had continued to obstruct the water channel. Since no orders were passed by the Sub Divisional Magistrate, the 1st respondent herein approached this Court by filing Crl.M.C.No.3584 of 2006. The said Crl.M.C was heard and finally disposed of on 03.04.2007 as Crl. M.C. No. 2036 of 2010 2 per which this Court after hearing the petitioner herein and the 1st respondent herein directed the Sub Divisional Magistrate to execute the final order issued under Section 138 Cr.P.C within 60 days of the order. It was thereafter that the Magistrate has passed Annexure A3 order directing the petitioner to remove the obstruction, failing which he has been treated with prosecution under Section 188 IPC. 3. According to the petitioner, there is no obstruction by the petitioner warranting an order in the form of Annexure A3. The 1st respondent disputes this. If there is continued obstruction by the petitioner to the water channel in spite of the final order dated 9.10.2002 then the Sub Divisional Magistrate will be justified in passing Annexure A3 order. If on the other hand, there is no act on the part of the petitioner obstructing the water channel, then the petitioner cannot be directed to remove the obstruction nor can he prosecuted for con-compliance of the final order. Crl. M.C. No. 2036 of 2010 3 4. Both sides agree that if the Sub Divisional Magistrate, after conducting a local inspection, is personally satisfied that there is act of obstruction on the part of the petitioner, then Annexure A3 order can be upheld. Accordingly, this Crl.M.C is disposed of directing Annexure A3 order to be kept in abeyance for a period of one month from today. The 6th respondent Sub Divisional Magistrate shall conduct a local inspection of the said site within the said period and if he is personally satisfied that there is continued obstruction on the part of the petitioner (Ragavan Nair), then Annexure A3 order dated 21.04.2010 will stand revived and confirmed. If on the other hand, the Magistrate is satisfied that that there is no obstruction caused by the petitioner to the water channel, then he shall pass appropriate orders in accordance with law. Dated this the 2nd day of July, 2010. V. RAMKUMAR, JUDGE sj