IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 4TH FEBRUARY 2009 / 15TH MAGHA 1930 Crl.MC.No. 4175 of 2008() ------------------------- Crl.R.P.No.151 of 2004 OF SESSIONS COURT, PALAKKAD .................... PETITIONER(S): REVISION PETITIONER/COUNTER PETITIONER --------------- GOVINDANKUTTYNAIR, CHEMMATTU HOUSE, KULUKKALLUR OTTAPPALAM, PALAKKAD DISTRICT. BY ADV. SRI.G.SREEKUMAR (CHELUR) SRI.K.RAVI (PARIYARATH) RESPONDENT(S): RESPONDENTS/PETITIONER --------------- 1. A.K. KAMALAKSHI AMMA, ATHRAYIKALAM, KULUKKALUR, OTTAPALAM, PALAKKAD DISTRICT. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.P.A.SALIM SMT.R.RANJINI FOR R1 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.M.C. No.4175 of 2008 ------------------------------------- Dated this the 4 th day of February, 2009 ORDER Petitioner claims to be aggrieved by the impugned order passed under Section 138 Cr.P.C by the Sub Divisional Magistrate. The said order has been upheld by the learned Sessions Judge in revision. 2. It was complained by the respondent herein that obstruction was caused to a public pathway by the petitioner. The S.D.M passed a conditional order calling upon the petitioner herein to remove such obstructions. It was asserted that there was a public pathway and the said public pathway is obstructed by a fencing done by the petitioner trespassing into the public pathway and by the adamant refusal to remove certain bamboo clusters which had grown into the pathway from the property of the petitioners. In response to the conditional order the petitioner appeared and raised objections. Precise objection, as can now be ascertained, is not that there is no public pathway or public right in respect of the pathway, but only that there is no obstruction to the pathway. Inasmuch as there was a confusing Crl.M.C. No.4175 of 2008 2 objection raised in the counter statement it appears that opportunity has been granted to adduce evidence under Section 137 Cr.P.C. But no evidence was adduced by the petitioner. It is thereafter that the S.D.M proceeded to pass orders under Section138 Cr.P.C. The village officer had inspected the property. As requested by both sides, the S.D.M had also inspected the property. It was found that there was obstruction caused to the pathway by the bamboo clusters in the property of the petitioner growing into the pathway. It was also found that a fencing constructed for the property of the petitioner was obstructing the pathway. 3. The learned counsel for the petitioner submits that the proper procedure under Section 138 Cr.P.C has not been followed. Even though it is not virtually disputed now that there existed a pathway; that public had a right to go through the pathway and that the attempt is only to widen the said pathway, the counsel contends that in view of the objection raised, the matter must have been posted for enquiry under Section 137 Cr.P.C. I do not find any merit in this contention. It is now evident that what is in dispute is not whether there is a public pathway or public right in respect of the pathway, but only about Crl.M.C. No.4175 of 2008 3 the width of the pathway. In these circumstances on the materials as now revealed it is evident that the omission to conduct a complete enquiry under Section 137 Cr.P.C and pass orders under Section137 Cr.P.C has not resulted in any miscarriage of justice. I repeat that the objection now raised is only that the pathway was attempted to be widened and not that the pathway did not exist or that there was no right for the public to use the pathway. 4. Undaunted the counsel for the petitioner submits that no enquiry under Secton 138 Cr.P.C has been conducted. Technically the contention appears to be correct. But it lacks in substance. The allegation is only that the bamboo cluster had grown into the pathway and the same is not removed. That is precisely what has been directed by the S.D.M in the impugned order under Section 138 Cr.P.C. About a fencing constructed on the side of the property of the petitioner also, though no formal and complete enquiry has been conducted under Section 138 Cr.P.C, we have materials to show that such fencing has been constructed obstructing the pathway. In these circumstances the grievance that a proper enquiry under Section 138 Cr.P.C has not been conducted does also pale into insignificance. Crl.M.C. No.4175 of 2008 4 5. I must alertly remind myself that I am called upon to invoke and exercise the extraordinary inherent jurisdiction which is available to this Court under Section 482 Cr.P.C. Second revision against the order under Section 138 Cr.P.C is barred in the light of Section 389(3) Cr.P.C. But that explains why the petitioner has come to this Court affixing the label of Section 482 Cr.P.C on his petition. I must take note of the contours of the jurisdiction of this Court. Unless this Court is convinced that failure of justice results, it is not at all necessary for this Court to invoke the jurisdiction under Section 482 Cr.P.C against an order confirmed in revision by the Sessions Court. I do not find any such reasons to assume or conclude that justice would fail or miscarriage of justice would result by the impugned order. 6. I am, in these circumstances, satisfied that notwithstanding the technical inadequacies pointed out by the learned counsel for the petitioner the impugned order confirmed in revision does not warrant interference. 7. This Crl.M.C is accordingly dismissed. (R.BASANT, JUDGE) rtr/-