IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 12TH AUGUST 2008 / 21ST SRAVANA 1930 Crl.Rev.Pet.No. 2711 of 2008() ------------------------------ CMP.8/2007 of SUB DIVISIONAL MAGISTRATE, PERINTHALMANNA .................... REVN. PETITIONER: COUNTER PETITIONER: ------------------------------------------------ CHERAKKATTIL ABDULLA, S/O.UNNEEN, EDAYIKKAL, ALIPARAMBA, MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENTS: PETITIONER & STATE: ------------------------------------------- 1. C.K.MUSTAFA, S/O.KUNHAHAMMED, CHEMMANKUZHIYIL HOUSE, EDAYIKKAL, ALIPARAMBA, MALAPPURAM DISTRICT. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. BY ADV. SRI. P. RAVINDRA BABU, PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 12/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR , J. ========================== Crl.R.P. No. 2711 of 2008 ========================== Dated this the 12th day of August, 2008. ORDER The revision petitioner was the counter petitioner in C.M.P. No. 8 of 2007 on the file of the Sub Divisional Magistrate, Perinthalmanna. The Sub Divisional Magistrate was moved by the 1st respondent herein Mustafa alleging that the revision petitioner who is the Manager of the A.M.L.P School, Edayikkal had caused an obstruction to the pathway claimed to be a public pathway passing through the western side of the A.M.L.P School, Edayikkal in Aliparamba village and which according to him, is being used by the public as well as the students. The alleged obstruction was the construction of steps in the middle of the said road. As per order dated 10.07.2007, the Sub Divisional Magistrate passed a conditional order calling upon the revision petitioner to remove the obstruction to the alleged pathway or to appear before the Sub Divisional Magistrate and show cause why the conditional order for removal should not be made absolute. Thereafter, the revision petitioner claims to have appeared before CRL.R.P. NO. 2711/2008 : 2: Sub Divisional Magistrate and objected to the conditional order for removal of the obstruction and disputed the public nature of the alleged pathway. He also claims to have adduced evidence in support of his denial. The grievance of the revision petitioner is that in spite of adducing evidence in support of the denial, the Sub Divisional Magistrate has passed the impugned order dated 28.06.2008 under Section 137(2) Cr.P.C deciding to proceed under Section 138 Cr.P.C and has posted the case for the evidence of the 1st respondent herein. It is the contention of the revision petitioner that in view of the evidence already adduced before Sub Divisional Magistrate in support of the denial, the only course open to the Sub Divisional Magistrate was to stay the proceedings until the question regarding the existence of the alleged public right has been decided by a competent civil court under Section 137(2) Cr.P.C. The petitioner would contend that instead of proceeding under the former part of sub-Section 2 of Section 137 Cr.P.C., the Sub Divisional Magistrate has decided to proceed under the latter part of the said provision on the wrong assumption that there is no evidence of denial. CRL.R.P. NO. 2711/2008 : 3: 2. The question as to whether there was evidence adduced in support of the denial of the alleged public right of the pathway in question, need not be considered by this Court at this stage of the proceedings. The Sub Divisional Magistrate as per the impugned order has only decided to proceed under Section 138 Cr.P.C and has posted the case for the evidence of the 1st respondent herein who was the applicant before the Magistrate. If after taking evidence, the Sub Divisional Magistrate passes a final order under Section 138 Cr.P.C making absolute the conditional order passed on 10.07.2007, the petitioner can very well challenge the same which alone is a revisable order. There is also the possibility of the Sub Divisional Magistrate, after taking evidence, coming to the conclusion that there is no evidence in support of the public nature of the right claimed by the 1st respondent who was the applicant before the Sub Divisional Magistrate. In any view of the matter, the finding by the Sub Divisional Magistrate that there is no reliable evidence in support of the denial of the alleged public right in support of his decision to proceed under Section 138 Cr.P.C, cannot be treated CRL.R.P. NO. 2711/2008 : 4: as a final order revisable under Section 397 r/w Section 401 Cr.P.C. In case a final order under Section 138 Cr.P.C is passed prejudicial to the contentions of the revision petitioner, then the observations and findings in the impugned decision rendered under Section 137(2) Cr.P.C also can be successfully assailed by the petitioner in a revision filed against the final order under Section 138 Cr.P.C. Hence, I do not find any good ground to interfere with the order passed by Sub Divisional Magistrate at this stage of the proceedings. However, having regard to the contention of the revision petitioner that he has been directed by the Government that the pre-KER buildings should be replaced by new buildings, the proceedings before Sub Divisional Magistrate cannot remain static and prejudicially affect the petitioner carrying out the directions of the Government. Hence, it is only fair and reasonable that the Sub Divisional Magistrate is directed to complete the recording of evidence and dispose of the matter expeditiously. Accordingly, this revision is disposed of with a direction to the Sub Divisional Magistrate, Perintalmanna to complete the entire proceedings in C.M.P. No. 8 of 2007 CRL.R.P. NO. 2711/2008 : 5: expeditiously and pass final orders within a period of two months of receipt of a copy of this order. If for any reason, he is unable to adhere to this time limit, he shall report to this Court through proper channel giving cogent reasons as to why he could not adhere to the time limit fixed as above. Dated this the 12th day of August, 2008. V. RAMKUMAR, JUDGE. rv CRL.R.P. NO. 2711/2008 : 6: