IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 26TH SEPTEMBER 2011 / 4TH ASWINA 1933 Crl.Rev.Pet.No. 1924 of 2011() ------------------------------ MC.63/2009 OF OF SUB DIVISIONAL MAGISTRATE, KOLLAM .................... REVN. PETITIONER: ----------------------------- B.SASIDHARAN, S/O.BHASKARAN, SUJIN NIVAS PARIPPALLY P.O., PIN: 691574, KOLLAM. BY ADV. SRI.R.ANILKUMAR RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 682031 2. HEALTH INSPECTOR, MEDICAL OFFICER IN CHARGE, PARIPPALLY P.O., PIN: 691 574, KOLLAM DIST. 3. ASST.EXECUTIVE ENGINEER, NATIONAL HIGH-WAY, PARIPPALLY P.O., PIN: 691 574, KOLLAM. 4. KALLUVATHUKKAL GRAMA PANCHAYATH, REP. BY SECRETARY, KALLUVATHUKKAL P.O., KALLUVATHUKKAL PANCHAYATH, GRAMA PANCHAYATH, KOLLAM, PIN 691578. 5. K.SASIDHARAN, DEVAKI NIVAS, PARIPPALLY P.O., KOLLAM DIST, PIN - 691 574. BY PUBLIC PROSECUTOR SRI.M.R.VENUGOPAL R5 BY ADVS. SRI.K.RAMAKUMAR, SENIOR ADVOCATE SRI.T.RAMPRASAD UNNI SMT.SMITHA GEORGE THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.Rev.Pet.No. 1924 of 2011() ----------------------------------------- APPENDIX ---------------- PETITIONER'S ANNEXURES --------------------------------------- ANNEXURE A. COPY OF THE COMPLAINT FILED MC. NO.63/2009. ANNEXURE B. COPY OF THE ORDER NO.LR. NO.169/09-10 DT. 09.06.09. ANNEXURE C. COPY OF THE ORDER NH P4/09-10 DT.04.07.09. ANNEXURE D. COPY OF THE ORDER PASSED IN MC NO.63 OF 2009 DT. 10.11.2009. ANNEXURE E. COPY OF THE JUDGMENT IN CRL.MC. NO.63/2009 DT. 13.06.2011 PASSED BY SUB DIVISIONAL MAGISTRATE, KOLLAM. RESPONDENT'S EXHIBITS : NIL -------------------------------------- / TRUE COPY / P.A. TO JUDGE VK S.S.SATHEESACHANDRAN, J -------------------------------------- Crl. R.P No.1924 OF 2011 ----------------------------------------- Dated this the 26th day of September 2011 ORDER Challenge in the revision is against Annexure E order passed by the Sub Divisional Magistrate, Kollam in a proceeding initiated under Section 133 of the Code of Criminal Procedure. 2. Provisions covered by Chapter XB of the Code of Criminal Procedure empower the Executive Magistrate to take appropriate action necessary to prevent nuisance which may tend to spill over and affect peace and public tranquility though such disputes are of civil nature, provided it falls within any of the contingencies covered by Section 133 of the Code. In the present case, the petitioner herein had filed a petition before the Sub Divisional Magistrate alleging that the construction of a latrine by the 5th respondent, a neighbouring property owner, close to his well from which he is collecting drinking water is likely to pollute and contaminate the well water. The Sub Divisional Magistrate, after obtaining a report from the revenue officials issued a conditional order directing the 5th respondent from continuing with the construction of the latrine and to show cause why that order should not be made absolute. In response to such notice, the 5th respondent entered appearance and filed objections in which among other contentions he disputed the right of the petitioner to Crl. R.P No.1924/2011 - 2 - initiate the proceedings contending that no public right was involved in the matter. It appears that the petitioner thereupon set forth a case that the public at large close to his residential building are also collecting water from his well and as such, they too have a right to take water from the well. In other words, the petitioner seems to have conceded the right of the public to take water from his well. Taking note of the above aspect, the learned Sub Divisional Magistrate passed Annexure D order holding that the right of the public is also involved in the dispute and then decided to proceed further. Thereafter, the Sub Divisional Magistrate conducted a local inspection and passed Annexure E impugned order without recording any evidence. Annexure E order would disclose that the distance from the well to the latrine put up by the 5th respondent satisfied the rules covered by the Building Rules and in that view of the matter, the petition moved alleging public nuisance over the construction of the latrine was dismissed. Taking exception to that order and challenging its propriety, legality and correctness, the revision has been filed. 2. I heard the counsel on both sides. When the case was posted to proceed further with the matter, after negativing the challenge of the 5th respondent denying the public right, taking a view that he has not let in any reliable evidence to substantiate such Crl. R.P No.1924/2011 - 3 - denial, the Sub Divisional Magistrate should have proceeded with the matter recording evidence as in a summons case, as contemplated under Sub Section (1) of Section 138 of the Code of Criminal Procedure. But that has not been complied with in the present case. The Sub Divisional Magistrate has passed the order solely on the basis of the conclusion formed after having a site inspection. Previously, the objection raised by the 5th respondent denying the public right canvassed by the petitioner had been negatived, does not empower the Magistrate to treat the case as if it can be decided solely on the basis of a site inspection alone. An opportunity should have been extended to the petitioner/ complainant to lead evidence in support of his case when a finding has been entered that the right of the public too is involved in the matter. No doubt, 5th respondent can produce materials that the construction of latrine made by him in his property satisfies the requirements covered by the Building Rules and no public nuisance as canvassed by the petitioner is involved in the case. That is a matter to be decided on the basis of the evidence to be let in the case. Without providing opportunity to the parties to substantiate their respective case, solely on the basis of the local inspection alone, the Magistrate cannot decide the issue. So much so, Annexure E order cannot be sustained. Setting aside that order, the Sub Divisional Magistrate is directed to take back the petition on Crl. R.P No.1924/2011 - 4 - file and dispose it in accordance with law after providing opportunity to both sides to lead evidence in support of their case. Parties are directed to appear through their counsel on 24-10-2011 before the Sub Divisional Magistrate. Revision is disposed of. Sd/- vdv S.S.SATHEESACHANDRAN, JUDGE //True Copy// P.A to Judge