IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 20TH DAY OF DECEMBER 2011/29TH AGRAHAYANA 1933 CRRP.No. 2606 of 2011 ( ) ------------------------------- MC.541/2011 of SUB.DVL.MAGI.COURT,FORT COCHI ........ REVISION PETITIONER(S) 1. SAJITHA,AGED 47 YEARS,W/O.SUBAIR, RESIDING AT H.NO.6/1214, KUTTUKULAM ROAD MATTANCHERY, KOCHI-2. 2. H.SALIM,AGED 48 YEARS,DO. DO. 3. V.M.IBRAHIM ,AGED 49 YEARS,DO. DO. 4. H.HABEEB,AGED 46 YEARS,DO. DO. BY ADVS.SRI.V.B.NARAYANAN SRI.ANIYANKUNJU VARGHESE RESPONDENTS 1. UNION OF INDIA, REP.BY SECRETARY, MINISTRY OF FINANCE, GOVERNMENT OF INDIA NEW DELHI. 2. COMPETENT AUTHORITY,SAFEM(FOP),UTSAV NO.64/1, T.NAGAR, MADRAS-17. 3. STATE OF KERALA,REP.BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. 4. THE DISTRICT COLLECTOR, ERNAKULAM. 5. VILLAGE OFFICER, VILLAGE OFFICE, MATTANCHERY. 6. BASHEER,H.NO.7/300 A, PANAYAPPILLY, KOCHI. R1 BY ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA R3 TO R5 BY PUBLIC PROSECUTOR SMT. R. SEENA THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 20-12-2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs CRRP. NO. 2606/2011 APPENDIX PETITIONER'S ANNEXURES: ANNEXURE A1:COPY OF THE SALE DEED NOS.1337/87, 1338/87, 1339/87 DATED 22/04/1987. ANNEXURE A2:COPY OF THE TENDER CUM AUCTION NOTICE DATED 29/03/2011. ANNEXURE A3:COPY OF THE PROVISIONAL ORDER DATED 12/08/2011. ANNEXURE A4:COPY OF THE OBJECTION FILED BY THE PETIITONERS DATED 21/08/2011. ANNEXURE A5:COPY OF THE PROVISIONAL ORDER DATED 23/08/2011. ANNEXURE A6:COPY OF THE OBJECTION FILED BY THE PETITIONER DATED ANNEXURE A7:COPY OF THE ORDER IN M.C.NO.541/2011/C OF SUB DIVISIONAL MAGISTRATE, FOR KOCHI DATED 13/09/2011. RESPONDENT'S ANNEXURES: NIL /TRUE COPY/ P.A. TO JUDGE. svs S.S.SATHEESACHANDRAN, J -------------------------------------- Crl.R.P No.2606 OF 2011 ----------------------------------------- Dated this the 20th day of December 2011 ORDER Challenge in the revision is against the orders passed in a proceeding under Section 133 of the Code of Criminal Procedure (for short 'the Code'), by the Sub Divisional Magistrate, Mattancheri. A preliminary order passed against the petitioners in such proceedings directing them to remove the obstruction alleged to have been caused over a public pathway with direction to show cause why that order should not be made absolute within the time fixed, has been made absolute by the Sub Divisional Magistrate and that is being challenged in this revision. 2. Facts involved in the revision can be summed up thus: One Subair, the husband of the 1st petitioner and brother of the other petitioners, was proceeded under Conservation of Foreign Exchange and Prevention of Activities Act, and he was detained. Pursuant thereto, steps were initiated under the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976, in short, SAFEMA, against his close relatives including the petitioners herein. A property having an extent of 3.785 cents comprising some buildings Crl.R.P No.2606 OF 2011 2 situate in Survey No. 67 of Mattanchery Village in Cochi Taluk , which under the deeds stood in the name of the petitioners as the title holders, was proceeded and, later, forfeited to the Government. The forfeited property was auctioned and in such auction it was purchased by one Sri.B.A.Abdul Rehim. Pending completion of the auction proceedings the competent authority filed a complaint before the Sub Divisional Magistrate alleging that the pathway leading to the forfeited property which was its only access had been blocked by the petitioners putting up a boundary wall in the adjoining property situate in Survey No.68. The Sub Divisional Magistrate, after collecting a report from the Village Officer and being satisfied that an obstruction amounting to a public nuisance has been caused over the forfeited property, which comes under a public place, commenced proceedings under Section 133 of the Code and issued a preliminary order directing the petitioners to remove the obstruction over the pathway or else to show cause why such order should not be made absolute. Annexure A7 is the copy of the order passed by the Sub Divisional Magistrate. In response to Annexure A7 order, the petitioners appeared before the magistrate and filed objections, in which among others they contended that there was no public pathway and the access to the forfeited Crl.R.P No.2606 OF 2011 3 property was through the property in their possession situate in survey No.68 and, as such, no proceeding under Section 133 of the Code can be initiated in respect of the obstruction imputed. After such objections were tendered by the petitioners taking exception to the preliminary order issued and resisting the proceedings initiated against them under Section 133 of the Code, the impugned order Annexure A7 was passed by the Sub Divisional Magistrate. Propriety, legality and correctness of that order is assailed in this revision. 3. I heard the learned counsel for the petitioners and also the Assistant Solicitor General of India for the respondents. The objections raised by the petitioners denying the existence of the public road and even disputing the public pathway was not gone into by the Sub Divisional Magistrate and without taking any evidence the preliminary order has been made absolute, is the submission of the counsel for the petitioners to contend that Annexure A7 order is unsustainable under law. It is also submitted by the counsel that the petitioners have no objection in providing a pathway to the property forfeited and auctioned under SAFEMA proceedings, but, it could be only as an easement and not as a public pathway. Whatever pathway, which existed earlier, formed part of their property under their ownership Crl.R.P No.2606 OF 2011 4 and possession and at no point of time there was any public pathway as held by the Sub Divisional Magistrate for access to the property forfeited and auctioned, is the submission of the counsel. Per contra, the learned ASG submitted that once a property is proceeded and forfeited under the SAFEMA with all right, title and interest thereto vesting with the Government, it becomes a public place as covered under the Explanation to Section 133(1) of the Code and, so much so, the proceedings initiated by the Sub Divisional Magistrate, when there was an obstruction to that public place by the petitioners putting up a boundary wall, for removal of such obstruction, is fully justified and there is no merit in the challenges canvassed to assail the order of the magistrate. Having regard to the facts and circumstances involved in the case and, further, taking note of the submissions made by the learned counsel for the petitioners and also the learned ASG, I find, to determine the propriety, legality and correctness of the order passed by the Sub Divisional Magistrate, it is unnecessary in this revision to examine the rights canvassed by the rival side and also dispute raised over the alleged pathway leading to the property forfeited and auctioned, which is claimed to be a public pathway by the respondents. Irrespective of the merits of the objections raised by the Crl.R.P No.2606 OF 2011 5 petitioners, when a preliminary order was issued against them as under Section 133 of the Code, they have appeared and filed objections, in which they denied the existence of the public right over the pathway over which obstruction is alleged to have been caused by them. Once the Sub Divisional Magistrate has commenced proceedings under Section 133 of the Code on the basis of the complaint of the competent authority under the SAFEMA and the party proceeded against raised an objection denying the public right, the magistrate has to continue the proceedings in accordance with the procedure laid down by the Code. Where a denial of public right is made, an opportunity has to be extended to the objector to lead reliable evidence in support thereof. In case after extending such opportunity, no such reliable evidence is tendered in support of the denial of the public right, then, after a finding thereof the magistrate has to record evidence as covered under Section 138 of the Code treating the proceedings as if a summons of case initiated on a complaint. When such procedure is followed, then, the evidence of the complainant has to be recorded at the first instance and then that of the respondent. Without following any of the above mentioned procedures, the learned Sub Divisional Magistrate, after perusing the Crl.R.P No.2606 OF 2011 6 records of the case has made the impugned order absolute negativing the objections raised by the opposite party in the proceedings. Annexure A7 order so passed is vitiated by procedural irregularity and it cannot be sustained. Whether this was a case where the Sub Divisional Magistrate should have proceeded under Section 133 of the Code when he received a complaint from the competent authority under the SAFEMA is a different matter. But, once proceedings are commenced under Section 133 of the Code by the executive magistrate in respect of a dispute which if not timely attended may result in breach of peace, and public tranquility, he is bound to follow the procedure laid down by the Code in deciding the disputed questions raised in such proceedings. Setting aside Annexure A7 order, the Sub Divisional Magistrate is directed to take back the file and pass appropriate orders in the proceedings taking note of the observations made above and in accordance with law. I also make it clear that it will be open to the executive magistrate to drop the proceedings and initiate appropriate action for removal of the obstruction by other means as provided by law. Executive magistrate is also directed to consider any proposal made by the respondents to provide a way through their property, which is least injurious to them Crl.R.P No.2606 OF 2011 7 in enjoying the rest of the property for access to the property forfeited and auctioned, of course, taking into account the views and opinion of the competent authority as well. Revision is disposed of. Sd/- vdv S.S.SATHEESACHANDRAN, JUDGE //True Copy// P.A to Judge