IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 28TH JUNE 2011 / 7TH ASHADHA 1933 Crl.MC.No. 1354 of 2011() ------------------------- CRRP.86/2010 of SESSIONS COURT, THRISSUR M.C.NO.186/2009 OF SUB DIVISIONAL MAGISTRATE, THRISSUR. .................... PETITIONER(S): REVISION PETITIONER/RESPONDENT: --------------------------------------------------------------------------------- GRACY, AGED 43, W/O. VAIDYAKARAN JOSE, PALAKKAL DESOM, PALISSERY VILLAGE, THRISSUR TALUK. BY ADV. SRI.G.SREEKUMAR (CHELUR) RESPONDENT(S): RESPONDENTS/COMPLAINANT AND STATE OF KERALA: --------------------------------------------------------------------------------------------------------------- 1. THE SUB DIVISIONAL MAGISTRATE, THRISSUR. 2. THE VILLAGE OFFICER, PANANCHERY VILLAGE OFFICE, THRISSUR TALUK, THRISSUR DISTRICT. 3. THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 TO R3 BY PUBLIC PROSECUTOR SRI. V. MANU THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 28/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss CRMC.NO.1354/2011 APPENDIX PETITIONER'S ANNEXURES: ANNEX.1: COPY OF THE ORDER PASSED BY THE FIRST RESPONDENT DTD. 13/05/09. ANNEX.II: COPY OF THE ARGUMENT NOTES SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT DTD. 20/11/09. ANNEX.III: COPY OF THE ORDER PASSED BY THE FIRST RESPONDENT DTD. 21/05/2010. ANNEX.IV: COPY OF THE ORDER PASSED BY THE SESSIONS COURT, THRISSUR DTD. 5/02/2011. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.1354 of 2011 -------------------------------------- Dated this the 28th day of June, 2011. ORDER This proceeding is instituted by the respondent in M.C.No.186 of 2009 of the Sub Divisional Magistrate, Thrissur (for short, “the SDM”) purporting to be under Section 133(1)(b) of the Code of Criminal Procedure (for short, “the Code”). Vide Annexure-III, order the SDM made the conditional order issued on May 13, 2009 absolute and petitioner was directed to stop mining of clay from the property comprised in R.S.No.176/1 of Pananchery Village forthwith. Though, petitioner challenged that order before the learned Sessions Judge, Thrissur, the criminal revision was dismissed by Annexure-IV, order dated 05.02.2011. Hence this Criminal Miscellaneous Case. It is contended by learned counsel that the Sub Divisional Magistrate was more concerned with the validity of act done by petitioner than whether the act of petitioner amounted to any trade or occupation which injuriously affected the health or physical comfort of the community. It is also contended by learned counsel that Section 133(1)(b) of the Code has no application to the facts of the case. It is further contended that evidence of the Village Officer is not sufficient to warrant a conclusion that the act of petitioner affected the health or physical comfort of the community injuriously. At any rate petitioner was not given sufficient opportunity to adduce Crl.MC No.1354/2011 2 evidence. Learned Public Prosecutor has contended that on the materials before the Sub Divisional Magistrate the order is justifiable as found by learned Sessions Judge and hence no interference is required. 2. Petitioner claims to be in possession of 2.92 ½ acres in R.S.No.176/1 of Pananchery Village where, for the purpose of starting fish farming, petitioner wanted to dig a pond. Petitioner claims to have got permission from the Director of Mining and Geology Department for digging the pond. While so, on April 23, 2009 the Village Officer issued memo directing the petitioner to stop digging of the pond. Based on a report of the Village Officer the SDM initiated proceeding under Section 133 of the Code and issued a conditional order (in M.C.No.186 of 2009) directing petitioner to stop digging of the pond forthwith or show cause why the said order shall not be made absolute. Petitioner filed statement showing cause. The Village Officer was examined as PW1. Before the learned Sessions Judge, petitioner got Exts.P1 to P7 marked while the file produced by the respondents was marked as Ext.B1. Based on the documents as well, learned Sessions Judge concurred with the view taken by the SD. 3. It is argued that petitioner is not conducting any trade or occupation but, only started digging of a pond for the purpose of an occupation (fish farming) and hence action initiated by the SDM is premature. Learned counsel has invited my attention to Section 133(1)(b) of the Code. 4. The said provision deals with conduct of any trade or Crl.MC No.1354/2011 3 occupation or the keeping of any goods or merchandise which is injurious to the health or physical comfort of the community. True, petitioner has not started fish farming as a trade or occupation but, has only started digging of the pond for such trade or occupation. I am not inclined to give a narrow interpretation to the words 'trade or occupation' as excluding any act for the purpose of starting such trade or occupation. If any such interpretation is given, it would appear that even if digging of pond affected the health or physical comfort of the community injuriously, the SDM will have to wait until the petitioner starts with the trade or occupation and in case petitioner does not start the trade or occupation but simply leaves the pond as it is, the SDM cannot at all initiate any action. Therefore, that argument of learned counsel has to be rejected and I do so. The act of petitioner in digging the pond forms part of the trade or occupation. Hence the SDM had the jurisdiction to initiate proceeding. 5. Then the next question is whether the impugned orders should be allowed to stand. Learned counsel has submitted that the question whether the act done by petitioner is in violation of any law in force or rules is not a matter which the SDM is concerned with while initiating action under Section 133(1)(b) of the Code. True, mere violation of the rules or absence of permission or other authority is not by itself sufficient for the SDM to initiate action under Section 133 (1)(b). For, the circumstances referred therein should exist for the SDM to exercise jurisdiction. 6. In the case on hand on the side of respondents there is evidence of PW1, the Village Officer who issued the stop memo to the petitioner Crl.MC No.1354/2011 4 on April 23, 2009 and on whose report the SDM has passed conditional order. It would appear that the report submitted by the Village Officer was not marked in evidence when the Village Officer was examined as PW1. Nor was the said report marked in the criminal revision. Instead entire file was marked as Ext.B1. The report of the Village Officer should have been marked when the Village Officer was examined as PW1. I also find from the report of the Village Officer (which forms part of Ext.B1, file) that so far as possibility of sliding of the land due to digging of pond is concerned he has only given an 'opinion'. It is further stated in the report that due to digging of pond there is possibility of it adversely affecting water sources in the locality and affecting the environment itself. The Village Officer reported that local people had told him that digging of the pond resulted in depletion of drinking water in the adjoining wells. The Village Officer also reported that depth of the pond dug by petitioner was around 25 ft. But in cross examination he stated that he has not measured the depth. If the above facts are proved, naturally it would injuriously affect the physical comfort of the community. 7. Regarding alleged scarcity of water in the wells what is available is only the report of the Village Officer that the local people had told him so. I am inclined to think that better evidence is required on the above matters. Merely based on an opinion a lawful activity cannot be prevented. There must be appropriate evidence in that regard. 8. Petitioner has a case that she has obtained permission from the department concerned for digging the pond upto a depth of 20 ft. Learned Crl.MC No.1354/2011 5 counsel submitted that petitioner has not violated the said condition. It is pointed out that in the light of the permission already granted, the SDM should not have initiated action. 9. Having regard to the circumstances brought before me I am inclined to think that better evidence is required to show that conduct of petitioner has affected the health or physical comfort of the community injuriously. At the same time I am inclined to think that petitioner also should be given opportunity to adduce evidence. In that view of the matter the impugned orders cannot stand and are liable to be set aside. The SDM shall conduct further enquiry as provided under Section 138 of the Code and take fresh decision after giving both sides opportunity to adduce evidence. I make it clear that it is open to the respondents also to adduce further evidence if any, in the matter. It is directed that the order prohibiting petitioner from digging the pond will remain in force until the SDM passes fresh order. Resultantly with the above directions and observations this Criminal Miscellaneous Case is allowed and the impugned orders are set aside. M.C.No.186 of 2009 is remitted to the Sub Divisional Magistrate, Thrissur for fresh decision. THOMAS P.JOSEPH, Judge. cks