IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 18TH JANUARY 2011 / 28TH POUSHA 1932 Crl.MC.No. 155 of 2011 ------------------------------------ MC.251/2009 of SUB DIVISIONAL MAGISTRATE, FORT KOCHI CRRP.44/2010 of SESSIONS COURT, ERNAKULAM .................... PETITIONER/REVISION PETITIONER/COUNTER PETITIONER: WILSON CORRAYA, S/O.JOSEPH, KUTTIKKAPARAMBIL, ELANKUNNAPUZHA. BY ADV. SRI.P.A.MUJEEB RESPONDENTS/STATE & PETITIONER/RESPONDENT: 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. JOHN KENNEDY, THOTTUMKARA HOUSE, ELANKUNNAPUZHA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.K.J.MOHAMMED ANSAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 18/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.Sasidharan Nambiar, J. --------------------------------------- Crl.M.C.No.155 of 2011 -------------------------------------- ORDER Petitioner is the counter petitioner in M.C.No.251/2009 on the file of Sub Divisional Magistrate, Fort Kochi. Annexure-A1 order was passed under Section 133(1) of Code of Criminal Procedure on a petition filed by the second respondent alleging that obstruction is caused to free flow of water from his property by filling the thodu situated in the property of the petitioner and it causes nuisance. Under Annexure-A1 order, Sub Divisional Magistrate directed the petitioner to reinstate the thodu in its original condition within ten days or to appear and show cause why the order shall not be made absolute (though the wording is “should not be enforced”). Petitioner did not appear. By Annexure-A2 order, learned Sub Divisional Magistrate made the conditional order absolute, evidently under Section 138 of Code of Criminal Procedure. Petitioner filed Annexure-A6 revision petition (Crl.R.P.No.44/2010) before Sessions Court, Ernakulam challenging both the preliminary order passed under Section 133 and the final order passed under Section 138 of Code of Criminal CRMC 155/2011 2 Procedure contending that he did not receive the conditional order as it was not served on him and therefore, he could not appear and raise objections why the preliminary order shall not be made absolute. Unfortunately, by Annexure-A7 order, learned Sessions Judge dismissed the revision without going into the merits holding that revision is not maintainable as only the preliminary order is challenged. This petition is filed under Section 482 of Code of Criminal Procedure to quash Annexure- A7 order. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. In the light of the order to be passed in this petition, I do not find it necessary or in the interest of justice to issue notice to the second respondent and delay the matter further. 4. Annexure-A6 revision petition shows that petitioner challenged not only the preliminary order passed under Section 133, but the final order passed under Section 138 of Code of Criminal Procedure. It is the specific case of the petitioner in the revision that preliminary order passed under Section 133 of Code of Criminal Procedure was not served on him and CRMC 155/2011 3 therefore, he did not get opportunity to show cause why the preliminary order shall not be made absolute and the final order was passed without service of show cause notice as provided under Section 133(1) of Code of Criminal Procedure. In such circumstances, learned Sessions Judge was not justified in dismissing the revision as not maintainable. Annexure-A7 order dismissing Crl.R.P.No.44/2010 is, therefore, to be quashed. Petition is allowed. Annexure-A7 order passed in Crl.R.P. No.44/2010 is quashed. Crl.R.P.No.44/2010 is restored to file and remitted to Sessions Court, Ernakaulam for fresh disposal in accordance with law. Learned Sessions Judge shall serve notice on the second respondent and hear the petitioner, second respondent and learned Public Prosecutor and dispose Crl.R.P. No.44/2010 on merits. 18th January, 2011 (M.Sasidharan Nambiar, Judge) tkv