IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 2ND SEPTEMBER 2011 / 11TH BHADRA 1933 Crl.Rev.Pet.No. 3257 of 2010() ------------------------------------------- AGAINST THE ORDER NO.S9-1063/09 DTD. 23.9.2010 OF THE DISTRICT MAGISTRATE, THIRUVANANTHAPURAM. ........... REVN. PETITIONER(S): -------------------------------- DISHNET WIRELESS LTD.NO.9419/33/2365, R.R.ARCADE, GEETHANJALI BUS STOP, N.H.BYE-PASS, THAMMANAM P.O., VYTTILA, KOCHI-32, REPRESENTED BY ITS AUTHORISED SIGNATORY AND CIRCLE MANAGER LEGAL, V.K.SAJITH. BY ADV. SRI.V.G.ARUN SRI.T.R.HARIKUMAR RESPONDENT(S): ---------------------------- 1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI-31. 2. THE DISTRICT MAGISTRATE (DISTRICT COLLECTOR), CIVIL STATION, THIRUVANANTHAPURAM-695 001. 3. SMT.JALAJAMANI.S, RAJEEVAM, CHEMPAKAMANGALAM, KORANI P.O., THIRUVANANTHAPURAM-695 104. 4. SRI.P.PURUSHOTHAMAN NAIR, MANJULA BHAVAN, CHEMPAKAMANGALAM, KORANI P.O., THIRUVANANTHAPURAM-695 104. 5. SRI.B.SUDHARSAN, PLAVILA VEEDU, CHEMPAKAMANGALAM, KORANI P.O., THIRUVANANTHAPURAM-695 104. tss CRRP. NO.3257/2010 6. SRI.B.RAVEENDRAN, SREENILAYAM, CHEMPAKAMANGALAM, KORANI P.O., THIRUVANANTHAPURAM-695 104. 7. SRI.VISWAMBARAN.J, RAJEEVAM, CHEMPAKAMANGALAM, KORANI P.O., THIRUVANANTHAPURAM-695 104. 8. SRI.M.RAJENDRAN, VILAYIL VEEDU, CHEMPAKAMANGALAM, KORANI P.O., THIRUVANANTHAPURAM-695 104. R1 & R2 BY PUBLIC PROSECUTOR SRI.SABU SREEDHARAN R3 TO R8 BY ADV. SRI.K.P.HARISH THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss CRRP. NO.3257/2010 APPENDIX PETITIONER'S ANNEXURES AI:- COPY OF THE RELEVANT PAGES OF THE LICENSE AGREEMENT DTD. 18.12.2006. AII:- COPY OF THE NOTIFICATION S.170(E) DTD. 4.2.2002. AIII:- COPY OF THE CONSENT DOCUMENT EXECUTED BY THE OWNER SRI.ABDUL RASHEED DTD. 1.10.2009. A IV:- COPY OF THE BUILDING PERMIT NO.B/354 DTD. 14.10.2009. A V:- COPY OF THE ORDER OF THE 2ND RESPONDENT DT.D 30.1.2010. A VI:- COPY OF THE INTERIM ORDER IN WP(C) 14929/2010 DT.D 17.5.2010. AVII:- COPY OF THE NOTICE DTD. 24.2.2010 ISSUED ON BEHALF OF THE 2ND RESPONDENT. A VIII:- COPY OF THE WRITTEN SUBMISSION MADE ON BEHALF OF THE REVISION PETITIONER. AIX:- COPY OF THE ORDER OF THE 2ND RESPONDENT DTD. 6.4.2010. RESPONDENT'S ANNEXURES NIL:- TRUE COPY P.A. TO JUDGE tss S.S.SATHEESACHANDRAN, J. ------------------------------- Crl.R.P.NO.3257 OF 2010 (B) ----------------------------------- Dated this the 2nd day of September, 2011 O R D E R Revision is directed against the final order passed by the District Magistrate, Thiruvananthapuram in a proceedings under Section 133 of the Code of Criminal Procedure, for short, the 'Code'. Revision petitioner was the respondent in the aforesaid proceedings. 2. The revision petitioner is a company engaged in providing telecommunication and related services to the general public. It claims of having a license duly granted by the Government of India for carrying out its activities. Construction of a tower proceeded with by the revision petitioner in Chembakamangalam in Veyloor village was objected to by the nearby residents, who lodged a petition before the District Magistrate imputing that the construction of such tower is an imminent danger and threat to their life. After collecting a report form the village officer, the District Magistrate passed an Crl.R.P.No.3257/2010 2 order under Section 133 of the Code directing the revision petitioner/respondent in the proceedings to stop further construction with immediate effect and to show cause why the conditional order so passed should not be made absolute. In response to the conditional order so issued, the revision petitioner entered appearance. After one or two postings for hearing, on the basis of the materials produced and taking note of the submissions made by both sides overruling and negativing the objections raised by the respondent in the proceedings, the impugned order was passed by the learned District Magistrate confirming the preliminary order. Propriety, legality and correctness of that order is challenged in this revision. 3. I heard the counsel on both sides. From the submissions made, it is noticed that in relation to the disputes covered in the present proceedings, one writ petition at the instance of the present revision petitioner even questioning the competency of the District Magistrate to initiate proceedings under Section 133 of the Code is still pending before this Court. The learned counsel for the revision petitioner would submit that Crl.R.P.No.3257/2010 3 preliminary order was passed on the basis of the prohibitory order issued by the District Collector, which is referred to in the order of the District Magistrate. A copy of that order is produced as Annexure IX in the revision. That prohibitory order issued by the District Collector had been challenged in separate proceedings, and that order now continues to be stayed under orders issued by this Court, is the submission of the counsel. It was on that basis, preliminary order of the District Magistrate was challenged by way of a separate writ petition as and when such order was issued. However, as no interim order was granted in such writ petition and the proceedings initiated by the Sub Divisional Magistrate have culminated in passing of the final order, it is fairly conceded by the counsel that the challenge against the preliminary order has become practically infructuous, and so much so, the revision petitioner is only interested in prosecuting the present revision moved against the final order. The final order passed by the District Magistrate was not all in tune or consonance with the procedure to be followed for disposal of a proceedings initiated under Section 133 of the Code, is the submission of the counsel. Solely on the Crl.R.P.No.3257/2010 4 basis of the oral submissions made and materials tendered without recording any evidence whatsoever, the District Magistrate has made the conditional order absolute though such order was objected to by the respondents showing cause why it should not be given effect to, is the submission of the counsel. The impugned order is, therefore, liable to be set aside and the revision petitioner has to be provided an opportunity to substantiate its objections producing materials is the further submission of the counsel. 4. Per contra, the learned counsel for the respondents/petitioners in the proceedings before the District Magistrate would submit that reasonable opportunity was extended to the present revision petitioner to show cause why the conditional order should not be made absolute. Several postings were also given and, thereafter, having regard to the imminent threat and danger caused by the construction of the tower, based on the materials produced, the conditional order previously passed was made absolute. That order does not warrant interference in exercise of the revisional jurisdiction of Crl.R.P.No.3257/2010 5 this Court, is the submission of the counsel. 5. Essentially, the disputes covered under Chapter X B of the Code are civil disputes, normally, required to be adjudicated upon and decided by the competent civil court. However, having regard to the nature of such disputes likely to give rise to threat to public peace and tranquility, preventive jurisdiction is conferred upon the Executive Magistrate to take timely action to abate such public nuisances, which, if not attended to, would affect public tranquility. What are the disputes in respect of which the Executive Magistrate can take such action, though they come under civil disputes, are spelt out under the various clauses covered by Section 13 of the Code. The Executive Magistrate is conferred with the power to take action to prevent public nuisances arising from such disputes as provided under various provisions covered by Chapter X B of the Code. All the same, it has to be taken note of those orders are only of interim nature with the finality thereof, if required, to be decided after proper adjudication by the competent civil forum. So much so, in passing of such interim orders by the Executive Magistrate, Crl.R.P.No.3257/2010 6 the manner in which the procedure has to be followed, no doubt, has to be given due significance, which otherwise, would cause serious prejudice and injury to the person against whom, such orders are issued. Though it is competent for the Executive Magistrate to pass interim prohibitory/conditional orders on information received, final orders in such proceedings have to be taken or passed in consonance with the procedure laid down under the provisions of Chapter X B of the Code. On the facts presented in the case, there is no dispute that the revision petitioner/respondent in the proceedings has appeared before the Executive Magistrate. The order passed by the Executive Magistrate does not reflect whether the revision petitioner has been questioned with respect to the conditional order already issued and the statement, if any, given by it recorded in the proceedings. That is the primary step that has to be taken once the person against whom a conditional order was issued appeared before the Executive Magistrate. If any reason is shown why the conditional order should not be made absolute by the person proceeded against, then, necessarily, a proper enquiry has to be conducted by the Executive Magistrate before Crl.R.P.No.3257/2010 7 taking a decision on the disputed question involved in the proceedings. Evidently, in the present case, the person proceeded against, the revision petitioner, has objected to the conditional order. Even assuming that he did not appear on the subsequent hearing dates, after the stage of his appearance and objection being raised, if proceedings are continued, a final order can be passed only on the basis of evidence recorded as in a summons case. Final order, in such circumstances, could not have been passed solely on the basis of the materials collected behind the back of the person proceeded against or on information otherwise received by the District Magistrate. Admittedly, the order impugned in the revision was not one passed under Section 136 of the Code treating the revision petitioner/respondent in the proceedings as ex parte. After appearance of the parties and hearing them, it is stated, the impugned order has been passed. There must be something on record satisfying the learned Magistrate that the proceedings already initiated under Section 133 of the Code by passing a conditional order has to be continued further making the conditional order absolute with or without modification. If any Crl.R.P.No.3257/2010 8 cause is shown by the person proceeded against, necessarily, that has also be looked into in determining whether the conditional order already passed has to be made absolute or modified or vacated. Sub section (1) of Section 138 of the Code clearly spells out that when a person proceeded against under Section 133 appears before him and show cause against the conditional order, the learned Magistrate has to take evidence in the matter as in a summons case. It is incumbent upon the petitioner/complainant to lead evidence at first, as he has invoked the jurisdiction of the learned Magistrate for the exercise of his preventive jurisdiction as covered under Chapter X B of the Code, and, then only for the respondent proceeded against to lead counter evidence. Such a procedure, no doubt, has not been followed in the present case when the District Magistrate made the conditional order absolute. So much so, the order impugned in the revision is liable to be set aside, and, I do so. 6. Setting aside the impugned order, the learned District Magistrate is directed to take back the petition on file and Crl.R.P.No.3257/2010 9 dispose it in accordance with law taking note of the observations made above and in accordance with law. If the revision petitioner files any written objections within a period of four weeks from today, such objections shall also be taken into consideration as his objections to the proceedings already initiated in the case. Parties are directed to mark their appearance before the learned District Magistrate on 10.10.2011. Revision is allowed as indicated above. S.S.SATHEESACHANDRAN JUDGE prp Crl.R.P.No.3257/2010 10