IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 17TH MARCH 2010 / 26TH PHALGUNA 1931 Crl.Rev.Pet.No. 352 of 2010() ----------------------------- MC.115/2006 of SUB DVL.MAGISTRATE. COURT,TRIVANDRUM OS.1199/2004 of II ADDL.MUNSIFF, TRIVANDRUM .................... REVN. PETITIONER(S): --------------------- 1. ANIL KUMAR, PANAYIL VEEDU, NEAR PLAMOODU PATTOM P.O., THIRUVANANTHAPURAM. 2. RADHA PANAYIL VEEDU, NEAR PLAMOODU PATTOM P.O., THIRUVANANTHAPURAM. 3. RAJAN, PANAYIL VEEDU, NEAR PLAMOODU PATTOM PP.O., THIRUVANANTHAPURAM. BY ADV. SRI.M.BALAGOVINDAN SMT.MINI GANGADHARAN RESPONDENT(S): --------------- 1. STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. 2. A.BANI, FATHIMA MANSION, T.C.12/154, PATTOM THIRUVANANTHAPURAM. ADV. SRI.K.MOHANAKANNAN FOR R2 SMT.A.R.PRAVITHA FOR R2 PUBLIC PROSECUTOR SRI. C.M. NAZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl. R.P. NO. 352 of 2010 * * * * * * * * * * * * * * * * * * Dated: 17th day of March, 2010 ORDER By a petition dated 9-5-2002 one Bhani (the 2nd respondent herein) , residing at Fathima Manson, TC 12/154, Pattom moved the Sub Divisional Magistrate, Thiruvananthapuram under Section 133 Cr.P.C. alleging obstruction by the revision petitioners and two others on a pathway claimed to be a public pathway which is a bund by the side of Plamoodu Thodu at Pattam, Thiruvananthapuram. On 30-5-2006 the Sub Divisional Magistrate passed Annexure R2 (e) conditional order under Sec. 133 (1) Cr.P.C. directing the revision petitioners and two others to remove the obstruction or to show cause why the conditional order should not be made absolute. There were certain collateral proceedings with which we are not concerned for the time being. Eventually, pursuant to the direction of this Court, in the Crl.R.P. No. 352 of 2010 -:2:- common judgment dated 5-6-2008 in W.P. (C ) Nos. 15590 & 21526/2006 the Sub Divisional Magistrate passed Annexure E final order dated 22-8-2008 under Section 138 Cr.P.C. directing the revision petitioners and two others to remove the obstruction caused to the pathway. The proceedings were numbered as M.C. No. 115 of 2006. Annexure (G) is a report dated 4-9- 2008 by the Village Officer, Pattom, to the effect that the obstruction caused on the Plamoodu Bund Road had been removed on 3-09-2008. The 2nd respondent has produced Annexure R2 (l) which is a report dated 8-9-2008 by the very same Village Officer wherein also he has stated that the obstruction has been removed by demolishing the structures on the 1.50 metre wide pathway, but would further add that even though the obstructors had demolished the buildings put up by them, the remaining purambokku land is continued to be possessed by the five obstructors. From the above statement, the 2nd respondent would contend that the obstruction on the pathway was not completely removed pursuant to the final Crl.R.P. No. 352 of 2010 -:3:- order. The learned counsel for the 2nd respondent would contend that on 15-7-2009 the Sub Divisional Magistrate had passed Annexure R2 (h) order directing the five obstructors to remove the obstruction made on the pathway and that order has not been challenged by the revision petitioners. 2. The grievance of the revision petitioners is that on 27- 1-2010 the Sub Divisional Magistrate has passed Annexure H order directing the Tahsildar and Executive Magistrate, Thiruvananthapuram to execute the final order in M.C. No. 115 of 2006 within seven days and report compliance and directing the Circle Inspector of Police, Medical College, Thiruvananthapuram to provide necessary protection as and when required by the Tahsildar and Executive Magistrate for executing the Order in M.C. No. 115 of 2006. According to the revision petitioners, what the 2nd respondent (a police officer) failed to obtain from the civil court is sought to be achieved through the Sub Divisional magistrate by repeatedly moving the Sub Divisional Magistrate. Crl.R.P. No. 352 of 2010 -:4:- 3. As mentioned earlier, Ananexure R2 (e) conditional order dated 30-5-2006 passed under Section 133 Cr.P.C. in M.C. No. 115 of 2006 was followed by Annexure E final order dated 22-8-2008 as per which the revision petitioners and two others were directed to remove the obstruction caused to the public pathway. Annexure G report dated 4-9-2008 if the Village Officer, Pattom will unequivocally show that the obstruction to the public pathway was removed on 3-9-2008. Whether the obstruction was completely removed or not is not our concern for the present. The fact remains that the Sub Divisional Magistrate on the basis of applications filed by the 2nd respondent would go on passing orders as is evidenced from Annexure R2 (h) and Annexure R2 (j) orders dated 15-7-2009 and 27-1-2010 as if final orders under Sec. 138 Cr.P.C. were being repeatedly passed. It appears that the Sub divisional Magistrate has been groping in the dark as to the remedies available pursuant to a final order passed under Section 138 Cr.P.C. Sec. 141 Cr.P.C. reads as Crl.R.P. No. 352 of 2010 -:5:- follows:- 141: Procedure on order being made absolute and consequences of disobedience:- (1) When an order has been made absolute under Section 136 or Section 138, the Magistrate shall give notice of the same to the person against whom the order was made, and shall further require him to perform the act directed by the order within a time to be fixed in the notice, and inform him that, in case of disobedience, he will be liable to the penalty provided by Section 188 of the Indian Penal Code (45 of 1960). (2) If such an act is not performed within the time fixed, the Magistrate may cause it to be performed, and may recover the costs of performing it, either by the sale of any building, goods or other property removed by his order, or by the distress and sale of any other movable property of such person within or without such Magistrate's local jurisdiction and if such other property is without such jurisdiction, the order shall authorise its attachment and sale when endorsed by the Magistrate within whose local jurisdiction the property to be attached is found. (3) No suit shall lie in respect of anything done in good faith under this Section Thus, if the conditional order passed under Sec. 133 (1) Cr.P.C. has been made absolute under Section 138 of Cr.P.C., the Magistrate is obliged to give notice to the obstructors (against Crl.R.P. No. 352 of 2010 -:6:- whom the order was passed) requiring them to perform the act directed, within a time to be fixed in the notice, and inform them that, in case of disobedience, they will be liable to the penalty provided by Section 188 I.P.C. 4. Thus, one of the consequence of non-compliance of the direction to remove the obstruction is a prosecution under Sec. 188 of the I.P.C. Sub Sec. 2 of Sec. 141 says that if the act directed to be performed within the time limit is not performed, then the Magistrate has the power to get it performed and recover the costs of performing it, either by sale of any building, goods or other property removed by the order of the Magistrate or by the distress and sale of any other movable property of the obstructor within or without the Magistrate's local jurisdiction and if such other properties are outside his jurisdiction, the order shall authorise its attachment and sale when endorsed by the magistrate within whose jurisdiction the property to be attached is found. These are the only modes by which the final Crl.R.P. No. 352 of 2010 -:7:- order passed under Section 138 Cr.P.c. can be enforced. They are either by prosecuting the offender under Section 188 of the I.P.C. or by getting the act performed and recovering the costs from the obstructor in the manner provided under Section 141 (2) Cr.P.C. If the obstruction to the pathway had already been removed there cannot be any further orders passed by the Magistrate purportedly under Section 138 again directing the obstructors to remove the obstruction and affording police aid for removal of the obstruction. Hence, Annexure H order dated 27-1-2010 is set aside and the Sub Divisional Magistrate is directed to examine whether the act directed to be performed in the final order dated 22-8-2008 had already been performed by removal of the obstruction. It is only if the obstruction caused to the public pathway has not been removed, can the Magistrate proceed with the matter further and that too he can act only in accordance with Sec. 141 Cr.P.C. If the Civil Court has passed a verdict against the claim of the 2nd respondent over the puramboke land over and Crl.R.P. No. 352 of 2010 -:8:- above the pathway in question, the Sub Divisional Magistrate will have no jurisdiction to satisfy the claims of the 2nd respondent over such puramboke land under the guise of removing the obstruction to the pathway. This Revision Petition is disposed of as above. Dated this the 17th day of March, 2010. Sd/-V. RAMKUMAR, (JUDGE) /true copy/ P.S. to Judge ani.