IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 5TH APRIL 2011 / 15TH CHAITHRA 1933 OP(Crl.).No. 1040 of 2011(Q) ----------------------------------------- CMP.7/2010 of SUB DIVL. MAGISTRATE, IDUKKI .................... PETITIONER -------------------- MUHAMMED, S/O.IBRAHIM, AGED 56, KARIMATTATH HOUSE, PUTHUCHIRA KARA, KUMARAMANGALAM VILLAGE, THODUPUZHA. BY ADVS. SRI.R.BINDU (SASTHAMANGALAM) SRI.PRASANTH M.P RESPONDENT(S): -------------------------- 1. M.RAJU, OLICKAL HOUSE, PERUMBILLICHIRA KARA, KUMARAMANGALAM VILLAGE, THODUPUZHA-685585. * 2. THE SUB DIVISIONAL MAGISTRATE, IDUKKI-685603. *R2 IS DELETED AS PER ORDER DTD. 15.3.2011 IN OP(crl) NO.1040/2011. 3. STATE OF KERALA, REP. BY THE SECRETARY TO HOME, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. R1 BY ADVS. SRI.P.NOOR ZAMEER, SRI.T.J.MICHAEL, SRI.JOSE MATHEW (KAVALAKALAM) . R2 BY GOVT. PLEADER SMT.M.K.PUSHPALATHA THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 05/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss THOMAS P.JOSEPH, J. ==================================== O.P.(Crl.) No.1040 of 2011 ==================================== Dated this the 05th day of April, 2011 O R D E R Petitioner is the respondent in C.M.P. No.7 of 2010 before the Sub Divisional Magistrate, Idukky challenging Exts.P1 and P2. Exhibit P2 is a complaint preferred by the first respondent before the Sub Divisional Magistrate based on which Ext.P1, conditional order was issued under Section 133(1)(a) & (d) of the Code of Criminal Procedure (for short, “the Code”). It is contended that there was absolutely no material on record to show that there is any dispute regarding a way which is or could lawfully be used by the public or any circumstance falling under Sec.133(1)(d) of the Code so that the Sub Divisional Magistrate could have issued the conditional order (Ext.P1). Learned counsel submitted that petitioner has already filed a suit against the first respondent and the said suit is pending consideration before the civil court. Learned counsel for first respondent contends that the proper course open to the petitioner was to file objection to Ext.P2, complaint and Ext.P1, conditional order and request the Sub Divisional Magistrate to conduct enquiry as contemplated under O.P(Crl.)P No.1040 of 1011 -: 2 :- Sec.137(1) of the Code in case existence of public right is denied. 2. Under Sec.133(1)(a) of the Code the Sub Divisional Magistrate has jurisdiction to pass a conditional order with respect to any public place, way, river or channel only when obstruction or nuisance has been caused to such place, way, river or channel which is or may be lawfully used by the public. In other words under clause (a) of sub-sec.(1) of Sec.133 the Sub Divisional Magistrate gets jurisdiction only when there is obstruction or nuisance to the way in question which is or may lawfully be used by the public. Clause (d) of sub-sec.(1) of Sec.133 of the Code deals with any building, tent, structure or any tree being in such a condition that it is likely to fall and thereby endanger human life. I have gone through Ext.P2, complaint. There is not even a whisper in Ext.P2 that the way in question is or may lawfully be used by the public. Instead what is revealed from Ext.P2, is only a private right claimed by the first respondent over the disputed way. 3. So far as initiation of proceeding under clause (d) sub- sec.(1) of Sec.133 is concerned, I find from Ext.P2, complaint that there is no mention that any tree is in such a position that it is likely to fall down and endanger human life. The only allegation O.P(Crl.)P No.1040 of 1011 -: 3 :- is that trees are standing in the way in question in such a way that first respondent is not able to use the said way as the trees have transgressed into the disputed way. Apparently there is no scope for application of Sec.133(1)(a) or (d) of the Code. If that be so initiation of proceeding is without authority and liable to be quashed. Without expressing any opinion on the right claimed by the first respondent over the disputed way and as to its existence this Original Petition is allowed. Exhibits P1 and P2 and all further proceeding before the Sub Divisional Magistrate pursuant to Ext.P1 are quashed. I make it clear that it is open to the first respondent to agitate his claim before the civil court. THOMAS P. JOSEPH, JUDGE. vsv