IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 11TH DECEMBER 2008 / 20TH AGRAHAYANA 1930 Crl.MC.No. 2647 of 2005() ------------------------- CRRP.60/2003 of ADDL.DISTRICT AND SESSIONS COURT ,FAST TRACK NO.I (ADHOC), MANJERI G.3439/2003 of SUB DIVISIONAL MAGISTRATE/RDO, PERINTHALMANNA. .................... PETITIONER: REVISION PETITIONER ---------------------------------------- KATTEKKADAM KASSALI, S/O. MOIDEEN, CHEMBRASSERY AMSOM AND DESOM, ERANAD TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.P.C.SASIDHARAN SRI.O.V.MANIPRASAD RESPONDENTS: ACCUSED AND STATE: ------------------------------------------ 1. MACHEERI @ PAKIDEERI KUMHARA, S/O. KUNHALAVI, CHEMBRASSERY AMSOM DESOM, ERANAD TALUK, CHEMBRASSERY EAST. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.R.RAMADAS FOR R1 PUBLIC PROSECUTOR SHRI AMJAD ALI FOR R2 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A.NO.10439/05 IN CRL.M.C.NO.2647/05 //DISMISSED// 11.12.2008 SD/-M.C.HARI RANI, JUDGE. M.C.HARI RANI, J. ----------------------------------------------------- CRL.M.C.No.2647 OF 2005 ----------------------------------------------------- DATED THIS THE 11th DAY OF DECEMBER, 2008 O R D E R This petition is filed under Section 482 of Cr.P.C. with the prayer to quash Annexure V and VII orders and to direct the Sub Divisional Magistrate, Perinthalmanna to proceed with Annexure I petition as per law. Annexure I is the petition filed by the petitioner herein under Section 133(1)(a) of Cr.P.C. before the Sub Divisional Magistrate, Perinthalmanna. The complaint in Annexure I is regarding a pathway which according to the petitioner was being used by the teachers of Manhaj Thaskiyathul Islamiya Arabic College and the students studying therein. The Public at large was also using that pathway as a public pathway even before the said College came into existence and the same was obstructed by the first respondent. Annexure II is the petition filed by the petitioner before the Sub Divisional Magistrate wherein, it is stated that the said pathway is still in the stage of obstruction by the first respondent and that there Crl.M.C.No.2647/05 -2- was threatening also by the said respondent. Annexure III is the report of the Tahsildar, Eranad, who inspected the pathway and reported that the disputed pathway is not seen using at the relevant time and that way is proceeding further and situated in R.S.Nos.312/15, 313/3,4, 311/2, 311/10, 311/3 and 311/4. Annexure IV is the report of the Tahsildar filed before the Sub Divisional Magistrate, Perinthalmanna, wherein it is stated that the first respondent was not present and the dispute regarding the obstruction of the pathway was not settled, though the petitioner was present on 19.4.2003 before the Taluk Sabha. Annexure V is the order of the RDO, wherein it is stated that further proceedings in the matter is not necessary which was informed to the petitioner herein and that such a way mentioned in the petition is not in existence as revealed from the Village records. Annexure VI is the copy of Crl.R.P. preferred by the petitioner before the Sessions Court, Manjeri wherein order produced as Annexure VII was passed on 21.5.2005 by the learned Additional Sessions Judge, Manjeri. As per Annexure VII, the learned Sessions Judge found that there was no illegality or Crl.M.C.No.2647/05 -3- impropriety in the impugned order of the RDO and the Crl.R.P. was dismissed. Thereafter, the petitioner has approached this Court by filing the present petition. 2. Heard the learned counsel appearing for the petitioner and the first respondent. Heard the learned Public Prosecutor also. 3. It is submitted by the learned counsel for the petitioner that no opportunity was given to the petitioner to prove his case and that the finding of the Sub Divisional Magistrate that alternate pathway is in existence to the College of the petitioner is not correct and that the disputed pathway was being used by the public at large even before the existence of the College. In order to attract Section 133 of the Cr.P.C., it is necessary that any way, which is or may be lawfully used by the public, was obstructed and thereby caused a public nuisance. It implies that the nuisance should be to the public at large and not to a particular set of people. In the present case, the obstruction was made by the first respondent to the College authorities including the students. The existence of another pathway to the Crl.M.C.No.2647/05 -4- College authorities was also noted by the Tahsildar as revealed from the report. If the way to the College is obstructed, the remedy of the College authorities is to approach the civil court and not to file a petition before the Sub Divisional Magistrate by invoking the provisions of Section 133 of Cr.P.C. Both the Sub Divisional Magistrate and the learned Sessions Judge found that Section 133 of the Cr.P.C. is not attracted in the present case. I find no reason to deviate from that finding of fact and to allow this petition. Therefore, there is no merit in this petition and it is liable to be dismissed. Accordingly, the Crl.M.C. is dismissed. M.C.HARI RANI, JUDGE. dsn