IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 14TH DECEMBER 2009 / 23RD AGRAHAYANA 1931 Crl.MC.No. 3648 of 2009() ------------------------------------ B2.1268/2008 of SUB DIVISIONAL MAGISTRATE , THIRUVALLA .................... PETITIONER/RESPONDENT --------------------------------------- P.V. THOMAS, S/O.LATE KANNUKUTTY, PADUTHODE VEEDU, VALANGARA MURI, PURAMATTOM, NOW RESIDING AT QTR.NO.V-B-229, VV, SAKTHINAGAR P.O., SONEBHADRA DISTRICT (UP) BY ADV. MR.V.PHILIP MATHEW RESPONDENTS/COMPLAINANT AND STATE ---------------------------------------------------------------- 1. M.K. CHACKO, MALEYECKAL, VALAANGARA, PATHANAMTHITTA. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR MR.S.U. NAZAR. R1 BY ADV. SMT.S.K.DEVI, MR.SANTHOSH P.ABRAHAM. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 14/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.3648 of 2009 -------------------------- ORDER Petitioner, the respondent in Proceedings No.B2- 1268/2008, initiated under Section 133 of Code of Criminal Procedure by Sub Divisional Magistrate, Thiruvalla, filed this petition under Section 482 of Code of Criminal Procedure to quash Annexure-5 order purportedly passed under Section 133 of Code of Criminal Procedure, directing the petitioner to remove the obstruction caused to the thodu within two weeks and to restore it to its original position. 2. Learned counsel appearing for the petitioner, first respondent and learned Public Prosecutor were heard. 3. Though Annexure-5 order is named as an order passed under Section 133 of Code of Criminal Procedure, it cannot be an order as provided under Section 133 of Code of Criminal Procedure. Section 133 of Code of Criminal Procedure enables the Sub Divisional Magistrate, if he considers that any unlawful obstruction or nuisance should be removed from any CRMC 3648/09 2 public place or from any way, on receiving a report of a police officer or on any other information and on taking such evidence as he thinks fit, to make a conditional order requiring the person causing such obstruction or nuisance to remove such obstruction or nuisance. Sub-section (1) of Section 133 mandates that the order should show that if he objects to do so, he shall appear before the Sub Divisional Magistrate at a time and place to be fixed by the order and show cause, as provided thereafter, why the order should not be made absolute. 4. Section 137 of Code of Criminal Procedure mandates that when such a person, against whom a conditional order under Section 133 is passed, appears, Magistrate is bound to question him as to whether he denies existence of any public right in respect of the way and if he denies, the Magistrate is bound to conduct an inquiry to find out whether there is reliable evidence in support of such denial. Only if he finds that there is no reliable evidence in support of the denial of existence of a public right, he can proceed under Section 138 of Code of Criminal CRMC 3648/09 3 Procedure. 5. Annexure-5 order shows that petitioner was directed to restore the thodu to its original position within two weeks. There is no direction to the petitioner to appear and if he objects, to show cause why the order shall not be made absolute. Hence, by no stretch of imagination, Annexure-5 order can be treated as a conditional order as provided under Section 133 of Code of Criminal Procedure. 6. Annexure-5 order is quashed. Sub Divisional Magistrate, Thiruvalla is directed to proceed with the case in accordance with law, after passing a conditional order as provided under Section 133 of Code of Criminal Procedure and directing the petitioner to appear and show cause why the conditional order shall not be made absolute and then proceed in accordance with law, as provided under Code of Criminal Procedure. Petition is disposed. 14th December, 2009 (M.Sasidharan Nambiar, Judge) tkv