IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 4TH JUNE 2009 / 14TH JYAISHTA 1931 Crl.Rev.Pet.No. 137 of 2009() ----------------------------- MC.61/2008 of SUB DIVISIONAL MAGISTRATE,MUVATTUPUZHA .................... REVN. PETITIONER(S): COUNTER PETITIONER --------------------------------------- JOSE MATHEW, MATHEKKAL HOUSE, ENACHATHOTTI, KUTTAMPUZHA, ERNAKULAM DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENT(S): PETITIONER & STATE --------------------------------- 1. BIJU BALAKRISHNAN, S/O. BALAKRISHNAN, KANJIRAMTHADATHIL HOUSE, ENCHATHOTTI, KUTTAMPUZHA, ERNAKULAM DISTRICT. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. ADV. SRI.K.JAJU BABU FOR R1 PUBLIC PROSECUTOR SHRI RAVINDRA BABU FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.137 of 2009 -------------------------------------- Dated this the 4th day of June, 2009. ORDER Heard counsel for petitioner, respondent No.1 and the Public Prosecutor. 2. This revision is in challenge of the final order passed by Sub Divisional Magistrate, Muvattupuzha in M.C.No.61 of 2008 under Section 138 of the Code of Criminal Procedure (for short, “the Code”) directing petitioner to remove the cowdung pit in his property. Respondent No.1 filed complaint before the Sub Divisional Magistrate alleging that the cowdung pit constructed in the property of petitioner is so close to the well in his property that drinking water in the well is being polluted. It caused nuisance to him and others. Complaint was got enquired through Village Officer, Kuttampuzha who submitted a report. Sub Divisional Magistrate also obtained the report of the Medical Officer, Kuttampuzha as to the alleged pollution of drinking water. A conditional order was issued under Section 133(1) of the Code directing petitioner to remove the cowdung pit or to show cause why the order should not be made absolute. Petitioner filed objection denying the allegations. Sub Divisional Magistrate inspected the site on 24.5.2008. Thereafter case was posted for evidence of petitioner on many occasions but, counsel for petitioner submitted that he had no further evidence to be let in. After hearing counsel on both sides Sub Divisional Magistrate passed the impugned order. Crl.R.P.No.137/2009 2 3. It is contended in the revision petition that no public nuisance is involved since the cowdung pit is constructed in the property of the petitioner and the well is situated in the property of respondent No.1. In the course of argument learned counsel for petitioner submitted that the final order cannot stand since no enquiry as contemplated under Section 138 of the Code was conducted by the Sub Divisional Magistrate. Counsel for respondent No.1 in response argued that report of the Village Officer and other materials would show that drinking water in the well is used not only by respondent No.1 but, the public at large and hence, Section 133(1) of the Code is attracted. 4. In this revision I am not going into the question whether Section 133 (1) of the Code is attracted, in view of the order I am proposing to make. It is seen that though Section 138 of the Code required the Sub Divisional Magistrate to record evidence in the matter as in a summons case no such evidence has been recorded. Report of the Village Officer and the certificate issued by the Medical Officer, without examining those officials and proving the same cannot be said to be evidence as contemplated under Section 138 of the Code. Counsel for petitioner submits that petitioner has evidence to be let in and is prepared to adduce evidence. Learned counsel for respondent No.1 submits that respondent No.1 also has evidence to be let in. Since no evidence as stated above has been recorded under Section 138 of the Code I am inclined to interfere with the order under challenge. Order under challenge is liable to be set aside and the matter sent back to the Sub Divisional Magistrate to record evidence under Section 138 of the Code and to dispose of the case afresh as Crl.R.P.No.137/2009 3 provided under law. Resultantly, this revision petition is allowed. The order challenge is set aside and the matter is remitted to the Sub Divisional Magistrate for fresh disposal in the light of the observations made above. Considering the urgency of the matter, Sub Divisional Magistrate is directed to expedite the proceedings before him. Crl.M.A.No.421 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks