IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 26TH SEPTEMBER 2008 / 4TH ASWINA 1930 Crl.Rev.Pet.No. 2327 of 2008() ------------------------------------------- CMP.2/2008 OF SUB DIVISIONAL MAGISTRATE, IDUKKI .................... REVN. PETITIONER: RESPONDENT NO.2 ----------------------------- VELAYUDHAN NAIR, 65 YEARS KAVANAKUNNEL HOUSE, ARIKKUZHA KARA MANAKKAD VILLAGE, THODUPUZHA TALUK. BY ADV. SRI.V.M.KURIAN SRI.MATHEW B. KURIAN SRI.K.T.THOMAS RESPONDENTS: PETITIONERS/IST RESPONDENT -------------------------- 1. VIJAYAN NAIR, S/O.NARAYANAN NAIR, 58 YEARS, MURIKKUMPILLI HOUSE, ARIKKUZHA KARA MANAKKAD VILLAGE, THODUPUZHA TALUK 2. VILASINI AMMA, W/O.VIJAYAN NAIR AGED 58 YEARS, MURIKKUMPILLI HOUSE, ARIKKUZHA KARA, MANAKKAD VILLAGE, THODUPUZHA TALUK. 3. VASUDEVA KAIMAL, S/O.VASUDEVA KAIMAL, 62 YEARS, MURIKKUMPILLI HOUSE, ARIKKUZHA KARA MANAKKAD VILAGE, THODUPUZHA TALUK 4. RAMAKKRISHNAN NAIR, PULLATT, ARIKKUZHA KARA, MANAKKAD VILLAGE, THODUPUZHA TALUK. 5. THE SUB DIVISIONAL MAGISTRATE IDUKKI. ADV. SRI.K.JAYAKUMAR FOR R1-3 SRI.R.SURAJ KUMAR FOR R1-3 SMT.GEETHA P.MENON FOR R1-3 SMT.V.DEEPA FOR R1-3 BY PUBLIC PROSECUTOR SRI.P.RAVEENDRA BABU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 2327 OF 2008 ............................................ DATED THIS THE 26th DAY OF SEPTEMBER, 2008 ORDER Sub Divisional Magistrate, Idukki passed an order under Section 133 of Code of Criminal Procedure on 25.3.2008, on the basis of a complaint filed by first respondent, directing petitioner to restore the water channel within seven days of receipt of the order or to appear on 16.4.2006 and show cause why the order shall not be made absolute. Petitioner appeared before Sub Divisional Magistrate and submitted Annexure VI objection denying existence of the public road. Under order dated 28.5.2008, Sub Divisional Magistrate made the conditional order absolute. It is challenged in this revision petition filed under Section 397 and 401 of Code of Criminal Procedure. 2. Learned counsel appearing for petitioner, for first respondent and learned Public Prosecutor were heard. 3. A perusal of the order passed under Section 138 of the Code on 28.5.2008 is sufficient to show the illegality of the order. When a conditional order is passed under Section 133 of Code of Criminal Procedure, the person against whom such an order is passed, is either to comply with the order within the CRRP 2327/2008 2 time provided therein or appear and show cause on the day fixed by court, why the order cannot be made absolute. Under Section 137 of Code of Criminal Procedure, when such person appears before the Magistrate, Magistrate shall question him as to whether he denies existence of any public right in respect of the way, river, channel or place and if he denies, Magistrate has no other option but to proceed as provided under Section 138 of the Code of Criminal Procedure. Sub-section (1) of Section 138 mandates that Magistrate shall take evidence in the matter as in a summons case. It is only after considering the evidence so recorded, Magistrate is competent to make the conditional order absolute either as such or with modification. 4. The order passed under Section 138 of Code of Criminal Procedure does not show whether petitioner has denied existence of the public right and whether evidence was recorded and the evidence establish that there is a public right and that right has been obstructed by the petitioner, which alone enables the Executive Magistrate to pass an order making the conditional order absolute. It is not disputed that the Executive Magistrate did not record any evidence as in a summons case, as provided under sub-section (1) of Section 138 of Code of CRRP 2327/2008 3 Criminal Procedure. Annexure VI, copy of the statement filed by petitioner itself establish that petitioner has denied existence of public right, which alone will enable Executive Magistrate to pass an order under Section 133 of Code of Criminal Procedure or 138 of Code of Criminal Procedure. The order dated 25.3.2008 does not show that a public right exits. The order is therefore set aside. Executive Magistrate is directed to reconsider the matter in accordance with law and decide the question afresh. Petitioner is entitled to take up all his contentions before the Sub Divisional Magistrate. Magistrate shall consider whether a public right is involved or not. M.SASIDHARAN NAMBIAR, JUDGE lgk/-