IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 24TH SEPTEMBER 2008 / 2ND ASWINA 1930 Crl.MC.No. 2382 of 2008() ------------------------- CRL.RP.82/2006 OF THE COURT OF SESSIONS, PALAKKAD M.P. 8 OF 2005 OF THE SUB DIVISIONAL MAGISTRATE, OTTAPALAM .................... PETITIONER(S): --------------- 1. MUHAMMED MUSALIYAR, S/O.MOOSA, PALLIMANHAYALIL HOUSE, THRITHALA AMSOM, KANNANOOR DESOM, NJANGATTIRI, OTTAPALAM TALUK. 2. ABDUL SAMAD, S/O. MUHAMMED MUSALIYAR, PALLIMANHAYALIL HOUSE, THRITHALA AMSOM, KANNANOOR DESOM, NJANGATTIRI, OTTAPALAM TALUK. 3. JAMEELA, W/O. MUHAMMED MUSALIYAR, PALLIMANHAYALIL HOUSE, THRITHALA AMSOM, KANNANOOR DESOM, NJANGATTIRI, OTTAPALAM TALUK. BY ADV. SRI.K.RAVEENDRAN SRI.PMM.NAJEEB KHAN RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. K.V. KOLAVAN, FATHER'S NAME NOT KNOWN, KUNNUMMAL VALAPPIL, KANNANOOR, THRITALA, NJANGATTIRI, OTTAPALAM TALUK. R1 BY PUBLIC PROSECUTOR SRI. GIKKU JACOB SRI.T.SETHUMADHAVAN FOR R2 SRI.PUSHPARAJAN KODOTH FOR R2 SRI.K.JAYESH MOHANKUMAR FOR R2 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 24/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 2382 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of September, 2008 O R D E R The petitioners, who have suffered an order under Section 138 Cr.P.C., have come to this Court with this petition to assail the concurrent orders passed by the Sub Divisional Magistrate and the Sessions Court. 2. A grievance was raised by the second respondent and others before the Sub Divisional Magistrate that a public pathway used by the members of the public was obstructed by the revision petitioners herein. The Sub Divisional Magistrate, after conducting the necessary pre-conditional order enquiry, issued a conditional order under Section 133(1) Cr.P.C. (copy produced as Annex.A) calling upon the petitioners herein to remove the obstruction or to appear and show cause. 2. The revision petitioners entered appearance and filed a statement. In such statement they contended that there was no such way at all as alleged by the petitioners. Thereupon the Sub Crl.M.C.No. 2382 of 2008 2 Divisional Magistrate directly proceeded to conduct an enquiry under Section 138 Cr.P.C. and came to the conclusion that there was actually objectionable obstruction. The Sub Divisional Magistrate accordingly proceeded to confirm the conditional order and made the same absolute by Annex.C final order passed under Section 138 Cr.P.C. That order was challenged in revision and the learned Sessions Judge by order dt.24.3.2008 in R.P. 82 of 2006 turned down the challenge. 3. The learned counsel for the petitioners raises one crucial contention, in the light of which I do not think it necessary to proceed with the other contentions raised. The learned counsel contends that the procedure stipulated under Section 137 Cr.P.C. has not been conducted by the Sub Divisional Magistrate at all. This has resulted in serious prejudice against the petitioners. When a person, against whom a conditional order under Section 133 Cr.P.C. is passed, appears before the Sub Divisional Magistrate, the Sub Divisional Magistrate is obliged to question him as to “whether he denies the existence of any public right in respect of the way” and if he so denies, the Magistrate before proceeding under Section 138 Cr.P.C. is obliged to enquire into Crl.M.C.No. 2382 of 2008 3 the matter. In such enquiry under Section 137(1) Cr.P.C. the Sub Divisional Magistrate has to ascertain whether “ there is any reliable evidence in support of such denial”. If there is, he must stay the proceedings. If there is no reliable evidence, he must record a finding to that effect and then only proceed to the enquiry under Section 138 Cr.P.C. 4. There can be no semblance of doubt on this legal aspect. The decision of this Court in Ramakrishnan v. K. Musalikutty (1985 Crl.LJ 630) has laid down the position very clearly. The said decision has been followed in a number of later decisions also. 5. In the instant case, it is evident that no enquiry under Section 137(1) Cr.P.C. has been conducted. No findings have been recorded. The omission to conduct an enquiry under Section 137 Cr.P.C. is a defect which goes to the root of the matter and affects the jurisdiction of the Sub Divisional Magistrate to proceed with the enquiry under Section 138 Cr.P.C. 6. I am, in these circumstances, satisfied that the concurrent orders passed against the petitioners deserve to be set aside. The Sub Crl.M.C.No. 2382 of 2008 4 Divisional Magistrate must be directed to continue the proceedings from the stage of Section 137 Cr.P.C. He shall specifically question the counter petitioners whether they deny the existence of the public right in respect of the way allegedly obstructed. If they do deny such existence, he must conduct an enquiry under Section 137 Cr.P.C. and record a finding. If the finding is adverse to the petitioners, the Sub Divisional Magistrate must thereafter proceed to conduct an enquiry under Section 138 Cr.P.C. 7. In the result: a) This Crl.M.C. is allowed. b) The impugned orders are set aside. c) The Sub Divisional Magistrate is directed to continue the proceedings from the stage of Section 137 Cr.P.C. d) The parties are directed to appear before the Sub Divisional Magistrate on 20.10.2008 to continue the proceedings. (R. BASANT) Judge tm