IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 28TH OCTOBER 2010 / 6TH KARTHIKA 1932 WP(C).No. 21173 of 2010(Q) -------------------------------------- CRRP.18/2010 of ADDL.DISTRICT COURT, THRISSUR .................... PETITIONER(S): ---------------------- UNNIYAPPAN @ RAVEENDRAN, S/O.RAVUNNY EZHUTHASSAN, THATTAMPARAMBIL HOUSE, MOORKKANIKKKARA DESOM, KUZHUKKULLY VILLAGE, THRISSUR TALUK. BY ADV. SRI.DINESH MATHEW J.MURICKEN RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. REVENUE DIVISIONAL OFFICER, AYYANTHOLE, THRISSUR-3. 3. EXECUTIVE MAGISTRATE & TAHSILDAR, CHEMBUKKAVU, THRISSUR, PIN-680001 4. VILLAGE OFFICER, PEECHI, THRISSUR- 680 653 5. S.I.OF POLICE, PATTIKKAD, PEECHI, THRISSUR, PIN- 680 653 6. ROY, S/O.OLAMALAKUZHIYIL VARKEY CHALAMPADAM DESOM, PEECHI VILLAGE, THRISSUR TALUK, PIN- 680 653 R1 TO R5 BY GOVERNMENT PLEADER SRI. P.A. SALIM R6 BY ADVS. SRI.C.HARIKUMAR SMT.MOLLY KOSHY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.21173/2010-Q APPENDIX PETITIONER'S EXHIBITS : P1 COPY F THE ORDER PASSED BY THE 3RD RESPONDENT DATED 19/01/2010. P2 COPY OF THE OBJECTION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 22/01/2010. P3 COPY OF THE CRIMINAL REVISION PETITION NO.18/2010, DATED 18/02/2010. P4 COPY OF THE ORDER IN CRL.REV.PETITION NO.18/2010 PASSED BY THE 1ST ADDL. SESSIONS COURT, THRISSUR, DATED 09/04/2010. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.S.TO.JUDGE sts M.SASIDHARAN NAMBIAR,J. =========================== W.P.(C)No. 21173 OF 2010 =========================== Dated this the 28th day of October,2010 JUDGMENT A notice was issued to the petitioner by the Sub Divisional Magistrate, directing petitioner to remove the obstruction caused to the water channel. Subsequently Ext.P1 order was passed directing petitioner to restore the channel. Petitioner filed Crl.R.P.18/2010 before Additional Sessions Court, Thrissur challenging Ext.P1 order. By Ext.P4 order, revision was dismissed holding that Ext.P1 is an order legally passed under section 133 of Code of Criminal Procedure. This petition is filed under section 482 of Code of Criminal Procedure to quash Ext.P1 and P4 orders. 2. Learned counsel appearing for the petitioner and sixth respondent were heard. 3. It is unfortunate that learned W.P.(C)21173/2010 2 Sessions Judge did not properly consider Ext.P1 and dismissed the revision holding that it is an order passed under section 133 of Code of Criminal Procedure. Section 133 of Code of Criminal Procedure enables a Sub Divisional Magistrate or the Executive Magistrate on getting report or information to pass a conditional order for removal of the public way or channel to the petitioner or to show cause why the conditional order shall not be made absolute, directing him to appear on a particular day. Ext.P1 order does not show that petitioner was directed to appear or to show cause why the conditional order shall not be made absolute. Though the first notice dated 8.1.2010 is not produced, learned counsel appearing for sixth respondent made available a copy of the notice. It only shows that petitioner was directed to remove the obstruction caused to the channel within two weeks, without any direction to appear or to show cause he shall not comply with the direction which is mandatory under section 133 W.P.(C)21173/2010 3 of Code of Criminal Procedure. Ext.P1 order is therefore illegal and can only be quashed. Petition is allowed. Ext.P1 order is quashed. It is made clear that the Sub Divisional Magistrate or the Executive Magistrate is entitled to proceed only after passing a conditional order and directing petitioner to show cause why it shall not be made absolute as provided under section 133 of Code of Criminal Procedure. The Sub Divisional Magistrate can proceed in accordance with law based on the report already submitted before the Sub Divisional Magistrate, on which the original notice dated 8.1.2010 is passed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006