IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH SATURDAY, THE 23RD MAY 2009 / 2ND JYAISHTA 1931 Crl.Rev.Pet.No. 477 of 2009() ----------------------------- ORDER NO. B2-.1268/2008 of SUB DIVISIONAL MAGISTRATE, THIRUVALLA .................... REVN. PETITIONER(S)RESPONENTS: --------------------- 1. P.V.THOMAS,AGED 40,S/O.LATE KANNUKUTTY, PADUTHODE VEEDU,VALANGARA MURI,PURAMATTOM, NOW RESIDING AT QTR.NO.V-B-229,VV, SHAKTHINAGAR P.O,SONEBHADRA DISTRICT (UP) 2. LALIMOL THOMAS,W/O.P.V.THOMAS, -DO- BY ADV. SRI.V.PHILIP MATHEW RESPONDENT(S)/COMPLAINANT AND STATE: --------------- 1. M.K.CHACKO,MALEYECKAL,VALAANGARA, PATHANAMTHITTA. 2. STATE OF KERALA REP.BY PUBLIC PROSECUTOR HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR SHRI P.R.JAYAKRISHNAN FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.477 of 2009 -------------------------------------- Dated this the 23rd day of May, 2009. ORDER Respondent No.1 remained absent inspite of being served. Public Prosecutor takes notice for respondent No.2 2. Heard counsel for petitioners and the Public Prosecutor. 3. Petitioners who are the respondents before Sub Divisional Magistrate in proceedings No.B2-1268 of 2008 challenges the legality, regularity and propriety of order dated 15.12.2008 directing them to restore the water chal allegedly obstructed by them within thirty days from date of order. Learned counsel for petitioners submits that it is not clear from the impugned order as to the provision of law invoked by the Sub Divisional Magistrate and that at any rate the provisions of Section 133 of the Code of Criminal Procedure (for short, “the Code”) have not been complied. Learned counsel relied on the decision in Assainar v. Moideenkutty (1999 (1) KLT 196) where it was held that a final order under Section 138 of the Code can be passed only on the basis of a conditional order issued under Section 133(1) of the Code. I went through the impugned order. True, the provision of law invoked is not explicitly stated but considering the nature of the complaint made by respondent No.1 and the impugned order it is reasonable to think that the complaint is in respect of alleged obstruction to the use of a public chal. In the nature of the direction issued in the impugned Crl.R.P.No.477/2009 2 order which is of a final nature, it could only be taken as one coming under Section 138 of the Code. 4. Chapter X B of the Code deals with proceedings in respect of public nuisance and Section 133(1) of the Code makes it abundantly clear that the District Magistrate, Sub Divisional Magistrate or the Executive Magistrate as may be specially empowered in that behalf by the State Government on receiving the report of a police officer or other information and on taking such evidence as he thinks fit considers it necessary to initiate action as stated therein, such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance to remove such nuisance or, if he objects so to do, to appear before himself or some other Executive Magistrate subordinate to him and show cause in the manner provided why the order should not be made absolute. It is therefore clear that in respect of public nuisance a final order under Section 138 of the Code can be passed only after following the procedures laid down in Sections 133 and 137 of the Code which apparently has not been done in this case. Therefore counsel for petitioner is justified in contending that the impugned order is illegal and liable to be set aside. I do so. However the matter has to go back to the Sub Divisional Magistrate for consideration of the complaint in accordance with the procedure laid down in Chapter X B of the Code. Resultantly, this revision petition is allowed. Order under challenge is set aside and the matter is remitted to the Sub Divisional Magistrate to pass Crl.R.P.No.477/2009 3 appropriate orders following the procedures laid down in Chapter X B of the Code if circumstances warranted it. Crl.M.A.No.1475 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks