IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 16TH JULY 2008 / 25TH ASHADHA 1930 Crl.Rev.Pet.No. 1687 of 2008() ------------------------------ F.NO..1224/2005 of SUB DIVISIONAL MAGISTRATE, ALAPPUZHA DATED 20.2.08 .................... REVN. PETITIONER: ------------------------------ 1. SAJEEVKUMAR M.K.,S/O.LATE RADHAKRISHNAN AGED 29, MUNDACKAL HOUSE,ERAMALLOOR, CHERTHALA. 2. VASU,S/O. KOCHILAN, AGED 64 LAKSHAM VEEDU COLONY,ERAMALLOOR, CHERTHALA. 3. RAVEENDRAN, S/O.VAPPI,AGED 54 YEARS CHERUVELITHARA,ERAMALLOOR, CHERTHALA. 4. VAPPI, S/O. CHEERAN, AGED 79, CHERUVELITHARA,ERAMALLOOR, CHERTHALA. 5. PURUSHOTHAMAN, S/O. KUTTY, AGED 54 YEARS,SAVITHRI NILAYAM ERAMALLOOR, CHERTHALA. BY ADV. SRI.P.SANKARANKUTTY NAIR SRI.T.V.AJAYAKUMAR -2- RESPONDENTS: ------------------------ 1. STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. SUB DIVISIONAL MAGISTRATE,ALAPPUZHA. 3. OMANKUTTYAMMA, THAMARAPPALLIYIL ERAMALLOOR, CHERTHALA. 4. JAYASREE, D/O.OMANAKUTTYAMMA THAMARAPPALLIYIL ERAMALLOOR, CHERTHALA. BY ADV. SRI.K.V.SOHAN FOR R3 TO 6 SMT.SREEJA SOHAN.K. FOR R3 TO R6 PUBLIC PROSECUTOR SRI.P.RAVEENDRA BABU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 16/07/2008, ALONG WITH COC NO. 605 OF 2008 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = = = = Crl.R.P.No.1687 of 2008 & Cont.Case(Civil) No.605 of 2008 = = = = = = = = = = = = = = = = = Dated this the 16 th day of July, 2008 ORDER I heard the learned counsel appearing for the petitioners in the Contempt Case and the learned Government Pleader. I also heard the learned counsel appearing for the petitioners in the Crl.R.P as also the counsel appearing for the respondents 3 to 6 therein. 2. In proceedings initiated under Section 133 Cr.P.C as proceedings No.F 1224 of 2005 before the Sub Divisional Magistrate, Alappuzha, the Sub Divisional Magistrate as per orders dated 7.10.05 and 4.01.06 held that he has no jurisdiction to proceed with the matter since the pathway in question was a private pathway. Those orders were challenged before this Court in Crl.R.P.No.2604 of 2006 and W.P.C.No.34330 of 2005. As per the common judgment dated 20.8.07, this Court set aside the order passed by the Sub Crl.R.P.No.1687/08 & Cont.Case(Civil) No.605/08 2 Divisional Magistrate and held that the Sub Divisional Magistrate was not justified in declining the jurisdiction under Section 133 Cr.P.C for the reason that the disputed pathway is a private pathway. This Court directed the Sub Divisional Magistrate to pass a conditional order under Section 133 Cr.P.C calling upon the obstructor to remove the obstruction or show cause why the conditional order should not be made absolute. After the common judgment of this Court, the Sub Divisional Magistrate instead of passing a conditional order under Section 133 Cr.P.C again passed the order dated 20.2.08, which is produced as Annexure A7 in the Contempt Court Case. As per that order, the Sub Divisional Magistrate dismissed the petition holding that as the dispute is a civil dispute the Sub Divisional Magistrate has no jurisdiction in the matter. The said order is contended to be an order passed in disobedience of the directions of this Court and is stated to amount to civil contempt. The very same order dated 20.02.08 passed by the Sub Divisional Magistrate is challenged in Crl.R.P.No.1087 of Crl.R.P.No.1687/08 & Cont.Case(Civil) No.605/08 3 2008, which is produced as Annexure 7 in this revision. 3. In the light of the common judgment dated 20.8.07of this court in W.P.C.No.34330 of 2005 and Crl.R.P.No.2604 of 2006 it was not open to the Sub Divisional Magistrate to hold that he had the jurisdiction to drop the proceedings as has been done in the order dated 20.2.08. He was specifically directed by this Court to pass a conditional order in terms of Section 133 Cr.P.C. In as much as he had failed to comply with the said direction of this Court there is clear non-compliance with the specific direction of this Court in the above judgment. However in the light of the unconditional apology tended by the Sub Divisional Magistrate, the same is accepted and no further proceedings are initiated against him. Cont.Case(Civil) No.605 of 2008, is accordingly dropped accepting the apology. 4. In as much as the Sub Divisional has failed to pass a conditional order in terms of Section 133 Cr.P.C, the order dated 20.2.08 passed by him pursuant to the remit by this Court cannot be supported and is set aside. It is made clear that it will be Crl.R.P.No.1687/08 & Cont.Case(Civil) No.605/08 4 open to the respondents to appear before the Sub Divisional Magistrate and raise all contentions available to them on receipt of notice of the conditional order passed by the Sub Divisional Magistrate. The learned Magistrate shall pass the conditional order in terms of section 133 Cr.P.C within two weeks of receipt of a copy of this order. Dated this the 16 th day of July, 2008. V. RAMKUMAR, JUDGE sj