IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 9TH JUNE 2009 / 19TH JYAISHTA 1931 Crl.MC.No. 613 of 2009() ------------------------------------ ORDER NO.A3.804/2004 DTD. 2/03/05 OF SUB DIVISIONAL MAGISTRATE, MUVATTUPUZHA. ................... PETITIONER(S): ------------------------ ANSON D.M., AGED 42 YEARS, S/O. DEVASSY, MOOLAMATTATHIL HOUSE, RANDAR P.O., MUVATTUPUZHA. BY ADVS. MR.V.M.KURIAN, MR.MATHEW B. KURIAN, MR.K.T.THOMAS. RESPONDENT(S): --------------------------- 1. THE SUB DIVISIONAL MAGISTRATE, MUVATTUPUZHA. 2. THE CIRCLE INSPECTOR OF POLICE, MUVATTUPUZHA. 3. THE VILLAGE OFFICER, MUVATTUPUZHA VILLAGE, MUVATTUPUZHA. 4. M.K. KRISHNAN, MANGAT HOUSE, MUVATTUPUZHA 686 661. R1 TO R3 BY PUBLIC PROSECUTOR MR. AMJAD ALI R4 BY ADV.MR.PEEYUS A.KOTTAM THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 09/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO. 613 OF 2009 ------------------------------------------ Dated 9th June 2009 O R D E R This petition is filed under Section 482 of Code of Criminal Procedure to quash Annexure 6 order passed by first respondent, Sub Divisional Magistrate, Muvattupuzha dated 2-3-2005 in A3.804/2004. Sub Divisional Magistrate passed that order purportedly under Section 133 of Code of Criminal Procedure on a complaint received from fourth respondent. From the case records of Sub Divisional Magistrate, made available by learned Public Prosecutor, it is seen that on 29-1-2004 fourth respondent filed a complaint before Revenue Divisional Officer, Muvattupuzha stating that with regard to the obstruction of a way being used by fourth respondent and his neighbours caused by Moolamattathil Devassia and his children Manuel and petitioner herein, a complaint was filed by fourth respondent on 28-5-2003 and the matter was enquired by Revenue Divisional Officer on 21-12-2003 and inspite of the promise to take action, no action CRMC 613/09 2 was taken. It was contended that due to the inaction, Devassia and his children had closed the way and it is causing much difficulty to the children to go to nursery school and therefore immediate action is to be taken. 2. The file shows that a report was called for from the Village Officer by the Revenue Divisional Officer and a report dated 3-2-2004 was received. Thereafter notice was issued to fourth respondent, Devassia and Manual directing them to appear on 15-3- 2004, then to 5-7-2004, then to 6-9-2004 and then to 20-10-2004. The file does not disclose what transacted on the respective dates. On 8-2-2005 a conditional order was passed under Section 133 of Code of Criminal Procedure directing Devassia and Manual to take immediate and effective steps to remove the obstruction in the pathway within one week on receipt of the order or to appear before the Court on 28-2-2005 and show cause why this order should not be made absolute. From a reading of the order, the said order satisfies a conditional order as provided under Section 133 of Code of Criminal Procedure. The case records do not show what happened on 28-2-2005. It CRMC 613/09 3 does not show that counter petitioners, Devassia and Manual, did not appear and did not show any cause or if they had appeared whether they were questioned as provided under Section 137 of Code of Criminal Procedure and if so, whether they disputed the existence of the public right or not. It is seen from the records that a statement is filed by the counter petitioners therein dated 1-3-2005 for condoning their failure to appear on the previous posting date and to set aside the conditional order. Annexure 6 order was thereafter seen passed on 2-3-2005 purportedly under Section 133 of Code of Criminal Procedure (and not under Section 138). The order shows that it has been made to appear to Sub Divisional Magistrate that the pathway that passed near to the property of counter petitioners and ends at the property of the petitioner is closed down and obstructed and therefore Sub Divisional Magistrate do thereby directed the counter petitioners Devassia and Manual to take immediate and effective steps to remove the obstruction in the pathway. Annexure-6 order is sought to be quashed by filing this petition under Section 482 of Code of Criminal Procedure by the petitioner, who is not a CRMC 613/09 4 party to the proceedings. He is the son of first counter petitioner Devassia before the Sub Divisional Magistrate. According to the petitioner, first counter petitioner in the proceedings, Devassia, sold the property in his favour as per Annexure 1 Sale Deed dated 1-3-2004 and he did not get any notice in the proceedings and so Annexure-6 order is illegal and has to be quashed. 3. Learned Counsel appearing for fourth respondent submitted that after Annexure 6 order was passed first counter petitioner challenged that order before this Court in W.P.(C) No.7448/2005 and the Writ Petition was dismissed on 4-3-2005 finding that remedy of the petitioner therein is to file a revision challenging that order. 4. Learned counsel argued that in spite of the writ petition, the father and brother of the petitioner did not challenge that order by filing a revision and the order became final and as the order passed under Section 138 of Code of Criminal Procedure was not executed, fourth respondent was compelled to file Crl.M.C.4506/2008 before this court which was disposed on 27/1/2009 with a direction to the Sub CRMC 613/09 5 Divisional Magistrate to execute the order and it is thereafter the present petition is filed without any bonafides. Learned counsel also argued that as seen from the order in I.A.682/2005 and I.A.1066/2005 in O.S.123/2005 on the file of Munsiff court, Muvattupuzha available in the case records produced by the Public Prosecutor, case of the petitioner in this petition can only be rejected as the petitioner was aware of the proceedings pending before the Sub Divisional Magistrate and in such circumstances when the validity of the proceedings under Annexure-6 order was upheld by this court in the writ petition, as well as in the earlier criminal M.C., a different view cannot be taken and therefore the petition can only be dismissed. 5. Section 133 of Code of Criminal Procedure enables the Sub Divisional Magistrate or Executive Magistrate, on receiving a report of police officer or other information and on taking such evidence which he thinks fit, and considers that any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel which is or may be lawfully used by the CRMC 613/09 6 public, to pass a conditional order requiring the person causing such obstruction or nuisance to remove such obstruction or nuisance within a time to be fixed in the order and if he objects so to do, to appear before himself or some other Executive Magistrate at a time and place to be fixed by the order and show cause why the order should not be made absolute. Section 136 provides the consequence of failure to comply with the order. Under the said section, if such person does not perform the said act or failed to appear and show cause he shall be liable to the penalty prescribed under Section 188 of Indian Penal Code and the conditional order shall be made absolute. Section 137 prescribes the procedure to be followed by the Magistrate when such person appears before Magistrate. Under Section (1) when such person appears the Magistrate is bound to question him whether he denies the existence of any public right in respect of the way or not and if, he denies the existence of public right, under sub section 2 the Magistrate has to conduct an enquiry and find whether there is any reliable evidence in support of such denial. If it is found that there is reliable evidence to support the CRMC 613/09 7 denial, he shall stay the proceedings till a civil court decides that question and if not Magistrate has to proceed as provided under Section 138. A final order under Section 138 could be passed only after an enquiry including recording the evidence as in a summons case as provided therein. Thereafter, Magistrate can either make the order absolute as it is or with modification and and if he is not satisfied, can drop the proceedings. This is the procedure which is to be followed by any Sub Divisional Magistrate. Question is whether Annexure-6 order was passed by complying with this procedure. 6. Annexure-6 order as is seen from the records of the Sub Divisional Magistrates is not passed either under Sections 133, 136 or 138. A conditional order under Section 133 was passed much earlier and no further order is seen passed as provided under the order. Annexure-6 order is not the final order either under Section 136 or 138. If the counter petitioners against whom conditional order under Section 138 was passed did not appear, Sub Divisional Magistrate is competent to make the conditional order absolute as provided under Section CRMC 613/09 8 136. Annexure-6 order dated 2/3/2005 does not show that, that order was passed for the failure of counter petitioners therein to appear or to show cause. If that be so, a final order could be passed only after enquiry as provided under Section 138 therein. The order does not show that any such enquiry was conducted. Records also show that no witness was examined as in the summons case and even the factum of existence of public way or its obstruction was considered. Annexure-6 order shows that as it has been made to appear to the Sub Divisional Magistrate that pathway near to the property of counter petitioners and ends at the property of the fourth respondent was closed down and obstructed, counter petitioners were directed to take immediate steps to remove the obstruction in the pathway. Records shows that even though based on the complaint received from the fourth respondent a report was called for from the Village Officer, based on that report dated 3/2/2004, no order was passed till a conditional order was passed on 28/2/2005. Proceedings under Section 133 is seen initiated only with effect from the said order. Though records shows that statement of the CRMC 613/09 9 counter petitioners were filed denying the existence of the way, Sub Divisional Magistrate has not conducted any enquiry to find out whether there is reliable evidence to support the denial and it was obstructed and if so, whether fourth respondent is entitled to get an order as provided under Section 138 of Code of Criminal Procedure. Therefore, the entire proceedings taken by the Sub Divisional Magistrate is in violation of the provisions of Sections 133 to 138 of Code of Criminal Procedure and therefore illegal. 7. Though learned counsel appearing for fourth respondent submitted that the order was upheld by this court in the earlier proceedings and therefore a different view cannot be taken, I find from the judgment in W.P.C.7448/2005 that this court did not consider validity of Annexure-6 order. That writ petition was disposed holding that the writ petitioner has a remedy of filing a revision challenging that order and therefore the writ petition is not maintainable. In Criminal M.C filed by the fourth respondent also, the validity of the order passed under Section 138 was not considered with reference to the records of the Sub Divisional Magistrate. There CRMC 613/09 10 was no finding that, that order was passed by complying with the proceedings provided in the Code of Criminal Procedure. Hence, those orders will not fetter this court from interfering with Annexure-6 order. When it is found that the order was passed in violation of the procedure. When petitioner is challenging the validity of the order and the records of the Sub Divisional Magistrate was made available and it is found that order was passed without complying with the procedure and therefore illegal, this court is bound to correct the mistake committed by the Sub Divisional Magistrate. 8. Hence Annexure-6 order passed by the Sub Divisional Magistrate is quashed. It is made clear that Sub Divisional Magistrate is entitled to proceed from the stage under Section 133. As subsequent to the petition originally filed by fourth respondent, first counter petitioner therein had transferred the property in favour of the petitioner herein, petitioner is entitled to appear before the Sub Divisional Magistrate. Sub Divisional Magistrate on such appearance shall question him whether he denies existence of public right as provided under Section CRMC 613/09 11 137(1). Fourth respondent and petitioner are directed to appear before the Sub Divisional Magistrate on 8/7/2009. Petitioner shall file a statement, if any, on that day. Sub Divisional Magistrate shall the question the petitioner as provided under Section 137 whether he denies the public way or not. If he denies as provided under Section 137(2), Sub Divisional Magistrate shall conduct an enquiry and if it is found that there is no reliable evidence, Magistrate shall proceed under Section 138 and only after recording the evidence in a summons case, the final order is to be passed. It is made clear that what is to be decided by the Sub Divisional Magistrate is not the present stage of the way but that on the date on which the first order under Section 133. Sub Divisional Magistrate to pass final order within six months from the date of appearance of the parties. M.SASIDHARAN NAMBIAR, JUDGE. uj.