IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 19TH NOVEMBER 2008 / 28TH KARTHIKA 1930 Crl.Rev.Pet.No. 2617 OF 2007() ------------------------------ E.5842/2006 OF SUB DIVISIONAL MAGISTRATE COURT, CHENGANNUR .................... REVN. PETITIONER(S): COUNTER PETITIONER: ---------------------------------------- M.S. THOMAS, SHOWN IN THE ORDER AS THOMAS, EBANAZER, ULAVUKADU, PALAMEL. BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SMT.KAVITHA GANGADHARAN RESPONDENT(S): STATE AND PETITIONER: ------------------------------------ 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. JANARDHANAN NAIR, CHERUKARA VEEDU, ERUMAKUZHY, PALAMEL VILLAGE. PUBLIC PROSECUTOR SRI. C.M. KAMMAPPU FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19/11/2008 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 2617 OF 2007 ------------------------------------------ Dated this the 19th day of November, 2008 O R D E R Revision petitioner is the counter petitioner in the proceedings initiated by Sub Divisional Magistrate, Chengannur under section 133 of Code of Criminal Procedure. Revision is filed challenging the order passed by the Sub Divisional Magistrate under section 138 of Cr.P.C. on 3.2.2002. Though notice was served on the second respondent, the petitioner before the Sub Divisional Magistrate, he did not appear. The records of the Sub Divisional Magistrate was called for and perused. 2. The records of Sub Divisional Magistrate shows that a complaint was filed by the second respondent before Sub Divisional Magistrate raising a contention that revision petitioner caused obstruction to a way through the property in survey No.408/2, which is the way available to second respondent and other persons to reach the public road and the obstruction is to be removed. The Sub Divisional Magistrate called for a report from the Village Officer. The report of the CRRP 2617/07 2 Village Officer dated 9.10.2006 shows that a way is passing through survey No.408/2 and obstruction is caused to that way and for about six years the way is being used by the second respondent and other neighbouring property owners. The report does not specifically show that it is a public way. The Sub Divisional Magistrate based on this report and the complaint of the second respondent, initiated proceedings under section 133 of Cr.P.C. On 9.11.2006 a conditional order was passed directing revision petitioner to remove the obstruction or to appear and show cause why the order shall not be made absolute, on 24.11.2006. The records show that the order was not served personally on the revision petitioner and instead it was affixed on his address and that too on 23.11.2006, the previous day fixed for his appearance by the order passed under section 133 of Cr.P.C. Records also show that on the application filed by the second respondent, Sub Divisional Magistrate appointed a commissioner on 2.12.2006. When the commissioner inspected the property and getting information about the proceedings, revision petitioner appeared before the Sub Divisional Magistrate and filed an objection disputing the public way and also contending that O.S. 305 of 2006 filed by CRRP 2617/07 3 the revision petitioner against the second respondent and six others is pending before Munsiff Court, Mavelikkara. Records also show that copy of the plaint in that suit and the report submitted by the Commissioner in the suit were also filed by the revision petitioner. It is thereafter the order under section 138 of Cr.P.C. was passed, without complying with the procedure provided under the Code. 3. Sub section (1) of Section 133 provides for passing a conditional order requiring the person causing obstruction to remove the obstruction or if he objects to do so, to appear before the Magistrate at a time and place to be fixed by the order to show cause why the order should not be made absolute. Under section 137, when an order under section 133 is passed, and the person against whom the order was made appears before the Executive Magistrate, it is for the Magistrate to question the person whether he denies existence of any public right in respect of the way. Sub section (1) provides that if he denies the public right, Magistrate shall conduct an inquiry on whether it is a public way or not. Under sub section (2) if on such inquiry the Magistrate finds that there is reliable evidence in support of such denial, he shall stay the proceedings until the matter of CRRP 2617/07 4 existence of such right has been decided by a competent Court. If, on the other hand, on the evidence or the materials he finds that there is no such evidence, he shall proceed as provided under section 138 of the Code. Sub section (3) provides that if the person against whom the order was passed under section 133, fails to deny the existence of public right of way or having made such denial but fails to adduce reliable evidence in support thereof, he shall not be permitted to make any such denial on any subsequent stage. Therefore, when a conditional order was passed on prima facie, satisfying that a public way was obstructed by the revision petitioner and revision petitioner appeared before the Sub Divisional Magistrate, as provided under sub section (1) of section 137, Sub Divisional Magistrate should have questioned the revision petitioner whether he denies the public right of way or not. Though petitioner was not questioned, the objection filed by the revision petitioner makes it clear that he is denying existence of a public way. If that be so, Sub Divisional Magistrate is bound to consider whether there is evidence in support of denial. Only if there is no evidence in support of denial, Sub Divisional Magistrate can proceed further under section 138. When the revision petitioner denies the CRRP 2617/07 5 public right, Sub Divisional Magistrate shall conduct an inquiry as provided under sub section (2). If at that stage the revision petitioner contends that the dispute is pending before a competent Court, Sub Divisional Magistrate has to stay the proceedings till the matter of existence of right has been decided by the competent Court. The records establish that revision petitioner appeared before Sub Divisional Magistrate and denied the public right and informed the Magistrate that the civil suit is pending where the right is to be decided. The Sub Divisional Magistrate therefore is bound to proceed only after the decision of a competent Court, if the matter is under consideration by the civil Court. As the order under section 138 was passed in violation of mandatory provision of section 137 and also without recording evidence, as in a summons case, as is mandatory under sub section (1) of section 138, the order can only be set aside. Revision is allowed. The order passed by the Sub Divisional Magistrate dated 3.2.2007 is set aside. Sub Divisional Magistrate is directed to question the revision petitioner whether he admits or denies existence of the public way as provided under sub section (1) of Section 137 of Code of CRRP 2617/07 6 Criminal Procedure. If the petitioner denies, Sub Divisional Magistrate is bound to conduct an inquiry as provided under sub section (2) of Section 137 of Cr.P.C. Only after completing that inquiry Sub Divisional Magistrate is entitled to proceed under section 138 of Cr.P.C. Sub Divisional Magistrate is directed to dispose the case in accordance with law. M. SASIDHARAN NAMBIAR, JUDGE Okb/-