IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 23RD SEPTEMBER 2008 / 1ST ASWINA 1930 Crl.Rev.Pet.No. 200 of 2001() ----------------------------- ORDER IN MC NO.97/2000 OF SUB DIVISIONAL MAGISTRATE, KASARAGOD. REVISION PETITIONER: --------------------- U.SHAKABBA, S/O.ABDULLA BEARY, BATYAPADAVU, KASARAGOD TALUK. BY ADV. SRI.K.V.SOHAN RESPONDENT/RESPONDENT: ---------------- STATE OF KERALA, REP. BY TAHSILDAR, KASARAGOD, REP. BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. PUSHPALATHA M.K. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P. No.200 of 2001 -------------------------------------- Dated this the 23rd day of September, 2008. ORDER The second counter petitioner in M.C.No.97 of 2000 before the Sub Divisional Magistrate, Kanhangad is aggrieved by the final order passed by that authority making the conditional order under Section 133 of the Code of Criminal Procedure absolute. 2. Heard the counsel for the revision petitioner and the Public Prosecutor. 3. Learned counsel submitted that the Sub Divisional Magistrate passed the impugned order without conducting the enquiry contemplated under Section 138 of the Code of Criminal Procedure. It is the further contention that the quarry is run in a three acre plot properly fenced, and without causing any sort of nuisance to the local people. Learned counsel submitted that the area where the quarry is situated is declared as drought affected area and that the quarry has now been converted as water tank. The Public Prosecutor submitted that the Sub Divisional Magistrate passed the impugned order on the strength of the report of the Village Officer concerned. 4. Presumably, the conditional order was passed under Section 133 (1)(b) of the Code of Criminal Procedure. Section 138 of the Code of Criminal Procedure states that when the person against whom the conditional order is Crl.R.P.No.200/2001 2 made appears and shows cause against the order, the Sub Divisional Magistrate shall take evidence in the matter as in a summons case. The impugned order states that the revision petitioner had appeared before the Sub Divisional Magistrate and filed a statement wherein he claimed that the property has been fenced properly as directed by the Sub Divisional Magistrate. 5. It is seen from the impugned order that the Sub Divisional Magistrate has passed the final order solely based on the report of the Village Officer. The report of the Village Officer may be a material on which the Sub Divisional Magistrate can issue a conditional order. But, that report ipso facto is not evidence in the enquiry under Section 138 of the Code. That report becomes evidence when it is proved by examining the Village Officer concerned, or, if he is not available, in any other manner known to law. The Sub Divisional Magistrate has not conducted the enquiry contemplated under Section 138 of the Code before passing the impugned order. On that ground, the order under challenge is liable to be set aside. 6. So far as the other contentions raised by the learned counsel referred above, I make it clear that it will be open to the revision petitioner to urge those contentions before the Sub Divisional Magistrate in the enquiry under Section 138 of the Code of Criminal Procedure. Resultantly, the Revision Petition is allowed. The impugned order is set aside and the matter is remitted to the Sub Divisional Magistrate to follow the procedure contemplated under Section 138 of the Code of Criminal Procedure Crl.R.P.No.200/2001 3 and pass appropriate orders. Crl.M.P.No.847 of 2001 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. cks Crl.R.P.No.200/2001 4 Thomas P.Joseph, J. Crl.R.P.No.200 of 2001 ORDER 23rd September, 2008.