IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH SATURDAY, THE 23RD MAY 2009 / 2ND JYAISHTA 1931 Crl.Rev.Pet.No. 1028 of 2009() ------------------------------ ORDER NO.D.6985/2008 of REVENUE DIVISIONAL OFFICER, FORT KOCHI .................... REVN. PETITIONER(S)/ACCUSED: --------------------- 1. ILLIAS HAJI NAGAR RESIDENTS ASSOCIATION, VAI PADI, EDAPPALLY NORTH, KOCHI 24, REP. BY ITS SECRETARY SHAJI K.GEORGE, S/O.GEORGE, AGED 52, PLOT NO.13, 'KALLUMPURATH', ILLIAS HAJI NAGAR RESIDENT ASSOCIATION, VAI PAI, EDAPPALLY NORTH, KOCHI 24. 2. NAZEER S/O.ABUL KHADER, EDATHOTTIL HOUSE, ILLIAS HAJI NAGAR, VAI PAI, EDAPPALLY NORTH, KOCHI 24. BY ADV. SRI.S.SREEKUMAR SRI.P.MARTIN JOSE SRI.P.PRIJITH RESPONDENT(S)/COMPLAINANT AND STATE: --------------- (*)1. THE REVENUE DIVISIONAL OFFICER, FORT KOCHI. 2. GOPALAKRISHNAN NAIR, AGED ABOUT 62, NNMENI, GOKULAM, PONEKKARA, ELAMAKKARA P.O., JAWAN CROSS ROAD, EDAPPALLY. 3. MOHANAN, S/O.NARAYANAN, AGD ABOUT 60, ILLIKKATTU HOUSE, KOONAMTHAI, EDAPPALLY, KALAMASSERY. 4. SONY VENEETH, 36/1738, CHILANKA, ILLIAS HAJI NAGAR, EDAPPALLY NORTH, KOCHI. 5. E.M.BINU, ILLIKKATTU HOUSE, ILLIAS HAJI NAGAR, EDAPPALLY NORTH, KOCHI. 6. STATE OF KERALA, REP. BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, RNAKULAM. (*)R1 IS DELETED FROM PARTY ARRAY AS REQUESTED BY COUNSEL FOR PETITIONER VIDE ORDER DATED 23.5.2009 IN CRL.R.P. PUBLIC PROSECUTOR SHRI P.R.JAYAKRISHNAN SRI.DINESH R.SHENOY FOR R2 TO 5 SRI.V.V.UNNIKRISHNAN FOR R2 TO R5 SRI.G.HARIKRISHNAN (TRIPUNITHURA) FOR R2 TO R5 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1028 of 2009 -------------------------------------- Dated this the 23rd day of May, 2009. ORDER Respondent No.1 is deleted from the party array as requested by counsel for petitioners. Heard counsel for petitioners, respondent Nos. 2 to 5 and the Public Prosecutor. 2. Challenge is to Annexure-VIII order dated 8.1.2009 passed by the “Revenue Divisional Officer” according to petitioners, purporting to be under Section 133 of the Code of Criminal Procedure (for short, “the Code”). Learned counsel for petitioners contended that the impugned order is not in accordance with the provisions of Section 133 (1) of the Code and that consequent to that order no notice was issued to the petitioners calling upon them either to comply with the order or to show cause why the order should not be made absolute. Learned counsel for respondent Nos.2 to 5 contended that in case it is found to be not in accordance with the provisions of Section 133(1) of the Code the matter may be sent back to the Sub Divisional Magistrate to pass appropriate orders as provided under law. 3. The Tahsildar, Ernakulam issued notice to petitioner No.2 based on a complaint preferred by respondent Nos.2 to 4 stating that petitioner No.2 has constructed a gate on the public road connecting to NH 17 at Crl.R.P.No.1028/2009 2 Edappally north and requesting appropriate action. Tahsildar issued Annexure- V notice, dated 20.10.2008 to petitioner No.2 for personal hearing on the date mentioned in the notice. Petitioner No.2 in turn filed Annexure-VI, reply to the Tahsildar taking up contentions which he thought are suitable to him. While so, petitioners challenged the proceedings before the Tahsildar in this Court in W.P. (C) No.31649 of 2008 and this Court as per judgment dated 30.10.2008 observed that Tahsildar may forward the report he prepared concerning the matter to the Revenue Divisional Officer who may if circumstances warranted proceeded in accordance with the provisions under Section 133 of the Code. This Court also observed that if there are circumstances, a conditional order can be passed by the Revenue Divisional Officer as provided under Section 133(1) of the Code giving opportunity to the petitioners to defend their rights in accordance with law and as provided under Section 138 of the Code. Now the precise question is whether the impugned order complies with the provisions under Section 133(1) of the Code. 3. At this stage I am not going to the question whether action under Section 133 of the Code is warranted. That is a matter to be decided by the 'Sub Divisional Magistrate' on the materials placed before him. The impugned order in my view is not in accordance with the provisions of Section 133 (1) of the Code since it purports to be a final order directing petitioners to remove the gate though, it is stated that it is subject to the decision of this Court. Section 133 of the Code is invoked in the impugned order but petitioners are not given the option to show cause why conditional order should not be made Crl.R.P.No.1028/2009 3 absolute. Therefore the impugned order cannot be sustained. It is liable to be set aside. I do so leaving it to the Sub Divisional Magistrate to consider the materials before him and pass appropriate orders if circumstances warranted action, complying with Section 133(1) of the Code and as directed by this Court in the judgment in W.P.(C) No.31649 of 2008. With the above observation revision petition is allowed and the matter is sent back to the Sub Divisional Magistrate to pass appropriate orders. Crl.M.A.No. 3060 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks