IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 21ST AUGUST 2009 / 30TH SRAVANA 1931 WP(C).No. 22677 of 2009(Q) -------------------------------------- MP.8/2007 OF SUB DIVISIONAL MAGISTRATE COURT, THALASSERY. .................. PETITIONER(S): ---------------------- K.K. ALEXANDER KUZHIYATH MAVILERY, CHUZHALI AMSOM DESOM SREEKANDAPURAM (VIA), KANNUR DT. BY ADV. MR.M.P.VIJAYAN RESPONDENT(S): ------------------------ 1. THE SUB DIVISIONAL MAGISTRATE, THALASSERY. 2. THE VILLAGE OFFICER, CHUZHALI, KANNUR DIST. 3. KADANTHOTTU VARGHESE, S/O.JOSEPH, MAVILERI, CHUZHALI AMSOM, DESOM, SREEKANDAPURAM (VIA), KANNUR DT. 4. SMT.KANDANTHOTTU CHINNAMMA VARGHESE, W/O.VARGHESE, MAVILERI, CHUZHALI AMSOM, DESOM, SREEKANDAPURAM (VIA), KANNUR DT. R1 & R2 BY GOVERNMENT PLEADER MR.AMJAD ALI. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ W.P.C.NO.22677 OF 2009 ------------------------------------------ Dated 21st August 2009 JUDGMENT Under Ext.P3 order Sub Divisional Magistrate, Thalassery directed the counter petitioners in M.P.8/2007 to stop running of the pig farm which is causing nuisance to the general public creating air and water pollution with immediate effect. Under Ext.P3 order dated 18/4/2008 the conditional order passed under 133 of Code of Criminal Procedure dated 18/6/2007, was made absolute. On the same day Ext.P4 order was issued by the Sub Divisional Magistrate directing the counter petitioners to obey Ext.P3 order threatening that if no prosecution under Section 188 of Indian Penal Code will be taken. Ext.P5 petition was subsequently filed by the petitioner, requesting the Sub Divisional Magistrate to initiate action under Section 188 of Indian Penal Code for the reason that till the date of filing of the petition, Ext.P3 order was not complied with. This petition is filed under Article 226 of Constitution of WPC 22677/09 2 India for a direction to the Sub Divisional Magistrate to see that Ext.P3 order is implemented with immediate effect and to direct them to stop functioning of the pig farm. 2. Learned counsel appearing for the petitioner was heard. 3. When an order under Section 138 of Code of Criminal Procedure was passed, Section 141 provides the procedure to be followed by the Sub Divisional Magistrate consequent to the disobedience of the order passed under Section 138. Under Sub Section (1) when an order has been made absolute under Section 136 or 138, the Magistrate shall give notice of the same to the person against whom the order was made, and shall require him to perform the act directed by the order within a time to be fixed in the notice, informing him that in case of disobedience, he will be liable to pay penalty provided under Section 188 of Indian Penal Code. Ext.P4 notice was issued as provided under Sub Section 1 of Section 141 of Code of Criminal Procedure. Sub Section 2 provides that if such act is not performed within the time fixed, Magistrate may cause it to be performed, and may recover costs of WPC 22677/09 3 performing it, either by the sale of any building, goods or other property removed by his order, or by distress and sale of any other movable property of such person within his jurisdiction and if such property is not within his jurisdiction the order shall authorise its attachment and sale by the Magistrate within whose jurisdiction it is found. 4. Petitioner did not approach the Sub Divisional Magistrate to get the act performed by the Sub Divisional Magistrate as provided under Sub Section 2. Instead under Ext.P5 only an order to proceed under Section 188 of Indian Penal Code was sought. Petitioner is at liberty to approach the Sub Divisional Magistrate for getting the act performed, as provided under Ext.P3 order. If petitioner files an application, first respondent Sub Divisional Magistrate is to proceed as provided under Sub Section 2 of Section 141 of Code of Criminal Procedure. Petition is disposed accordingly. M.SASIDHARAN NAMBIAR, JUDGE. uj.