IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 14TH AUGUST 2009 / 23RD SRAVANA 1931 Crl.MC.No. 2202 of 2009() ------------------------- CRRP.38/2008 of ADDL.SESSIONS COURT, KOTTAYAM .................... (M.C.NO.77/2007 OF SUB DIVISIONAL MAGISTRATE, KOTTAYAM) PETITIONER(S): PETITIONER/COMPLAINANT/A-PARTY: ----------------------------------------------------------------------------------- M.D.MATHEW,VELLAPPALLIYIL HOUSE, POOMATTAM,RUBBER BOARD P.O., PUTHUPALLY,KOTTAYAM DISTRICT. BY ADV. MR.K.P.SARVOTHAMAN RESPONDENT(S): CR.PETITIONERS & STATE: -------------------------------------------------------------------- 1. SRI.GEORGE THOMAS,MULACKAL HOUSE, RUBBER BOARD P.O.,PUTHUPPALLY, KOTTAYAM DISTRICT. 2. SRI.ROY ABRAHAM,MACHUKADU HOUSE, RUBBER BOARD P.O.,PUTHUPPALLY, KOTTAYAM DISTRICT. 3. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. R3 BY PUBLIC PROSECUTOR MR. S.U. NAZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 14/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.2202 OF 2009 ----------------------------------------- Dated 14th August 2009 O R D E R Petitioner is the complainant, A party before the Sub Divisional Magistrate, Kottayam in M.C.77/2007. The proceedings was initiated under Section 133 of Code of Criminal Procedure. Under Annexure-I order a conditional order was passed. It was made absolute under Annexure-II order dated 20/6/2008. B party respondent, before Sub Divisional Magistrate challenged that order before the Sessions court, Kottayam in Crl.R.P.38/2008. Learned Sessions Judge under Annexure-3 order finding that infringement alleged is not in respect of a public right but only a private right held that learned Sub Divisional Magistrate could not invoke the jurisdiction under Section 133 or 138 of the Code and therefore set aside Annexure-II order and allowed the revision. As second revision is not maintainable this petition is filed under Section 482 of Code of Criminal Procedure. 2. Learned counsel appearing for petitioner CRMC 2202/09 2 and learned Public Prosecutor were heard. 3. Learned counsel appearing for petitioner argued that nuisance is caused not only to the petitioner but to the general public and in such circumstances, learned Sessions Judge should not have interfered with Annexure-II order especially when first respondent has admitted at the time of evidence that because of stagnation of water nuisance is caused to him also. 4. On hearing the learned counsel I find no reason to interfere with Annexure-II order. As rightly found by the learned Sessions Judge Section 133 of Code of Criminal Procedure could be invoked only if public right is affected. As on the materials, learned Sessions Judge rightly found that the dispute is only relate to a private dispute. Sub Divisional Magistrate has no jurisdiction to invoke power under Section 133 of Code of Criminal Procedure. Petitioner is at liberty to seek civil remedy. Petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.