IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 27TH JANUARY 2009 / 7TH MAGHA 1930 Crl.MC.No. 4506 of 2008() ------------------------------------- (FINAL ORDER NO.A.3 804/2004 DTD. 04/05/2005) PETITIONER(S): ------------------------ M.K.KRISHNAN, S/O.KUNJAN, AGED 75 YEARS, MANGATTU HOUSE, MUVATTUPUZHA KARA, MUVATTUPUZHA VILLAGE. BY ADV. SRI.PEEYUS A.KOTTAM RESPONDENT(S): ------------------------------ 1. REVENUE DIVISIONAL MAGISTRATE, MUVATTUPUZHA. 2. CIRCLE INSPECTOR OF POLICE, POLICE STATION,MUVATTUPUZHA. 3. VILLAGE OFFICER, MUVATTUPUZHA VILLAGE, MUVATTUPUZHA. 4. DEVASSIA, S/O.MANI,AGED 67 YEARS, MOOLAMATTATHIL HOUSE, MUVATTUPUZHA VILLAGE MUVATTUPUZHA KARA, MUVATTUPUZHA TALUK. 5. MANUEL,S/O. DEVASSIA, AGED 56 YEARS MOOLAMATTATHIL HOUSE, MUVATTUPUZHA VILLAGE MUVATTUPUZHA KARA, MUVATTUPUZHA TALUK. PUBLIC PROSECUTOR SRI.GIKKU JACOB FOR R1 TO R3 THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 27/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss R. BASANT, J. ------------------------------------------------- Crl.M.C. No. 4506 of 2008 ------------------------------------------------- Dated this the 27th day of January, 2009 ORDER At the instance of the petitioner, proceedings under Sec.133 Cr.P.C. was initiated by the Sub Divisional Magistrate, Muvattupuzha. A conditional order dated 8/2/05 was passed by the SDM after securing a report of the Village Officer. Thereafter, an order Sec.138 Cr.P.C. was passed on 2/3/05 confirming the earlier order to remove the obstruction to the pathway. The conditional order and the final order are produced as Exts.R1(a) and R1(b) by the SDM along with the statement filed by him. 2. After the order under Sec.138 Cr.P.C. was passed, the 4th respondent herein came to this Court with W.P.(c) No.7448/05 with the assertion that he wants to move the superior criminal courts in revision to challenge the final order passed under Sec.138 Cr.P.C. With appropriate observations, Crl.M.C. No. 4506 of 2008 -: 2 :- the said petition was dismissed vide Annexure-A3 judgment i.e., the judgment dated 4/3/05 in W.P.(c) No.7448/05. 3. Subsequently, by Annexure-4 order, the counter petitioners herein were ordered to remove the obstruction in terms of the absolute order passed under Sec.138 Cr.P.C. The short grievance of the petitioner is that though a period of about 3 ½ years has elapsed, the order passed under Sec.138 Cr.P.C. has not been executed. With that grievance the petitioner has come to this Court. A direction to implement the order under Sec.138 Cr.P.C. is sought in this Crl.M.C. 4. Notice was given to the respondents. All the respondents have entered appearance. Respondents 4 and 5 are represented by counsel; but no statement has been filed by them. The SDM has filed a statement in which it is represented that no action has been taken so far to execute the order passed under Sec.138 Cr.P.C. No pathway is at present available, it is reported by the SDM. He inspected the property in question, it is further submitted. 5. The SDM makes a strange request. He prays that he may either be permitted to dispose of the proceedings under Sec.133 Cr.P.C. afresh or may be directed to execute the order. 6. I have no hesitation to agree with the learned counsel Crl.M.C. No. 4506 of 2008 -: 3 :- for the petitioner that it is the duty of the SDM now to execute the final order passed under Sec.138 Cr.P.C. The conditional order under Sec.133 Cr.P.C. was passed. Later final order under Sec.138 Cr.P.C. was passed. Respondent No.4 wanted to challenge the order. He also reckoned the order under Sec.138 Cr.P.C. as a valid order under that Section. He did not later choose to challenge the order. In these circumstances, the conclusion appears to be inevitable that the order passed under Sec.138 Cr.P.C. must now be executed by the SDM. In fact, by Annexure-4 order steps to execute the order have already been taken as early as on 4/5/05. At the moment, I find absolutely no merit in the stand taken by the SDM that he may be permitted to dispose of the proceedings under Sec.133 Cr.P.C. afresh. That option is not available to me inasmuch as a final order under Sec.138 has already been passed and the respondents have not chosen to challenge that order. The prayer of the petitioner that the conditional order duly confirmed by the order under Sec.138 Cr.P.C. may be directed to be executed does appear to me to be absolutely reasonable and fair. 7. In the result: (a) This Crl.M.C. is allowed. (b) A direction is issued to the SDM to execute the order Crl.M.C. No. 4506 of 2008 -: 4 :- passed under Sec.138 Cr.P.C. as alternatively undertaken by him within a period of two weeks from this date. 8. The learned Public Prosecutor shall communicate this direction to the SDM. Hand over a copy of this order to the learned Public Prosecutor and the learned counsel for the petitioner for production before the SDM. Compliance shall be reported to this Court by the SDM within one month. Communicate the order to the SDM. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge Crl.M.C. No. 4506 of 2008 -: 5 :-