IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 2ND JUNE 2008 / 12TH JYAISHTA 1930 Crl.Rev.Pet.No. 670 of 2005(C) ------------------------------ A.4734/2004 ON THE FILES OF THE SUB DIVISIONAL MAGISTRATE COURT, KOZHIKODE .................... REVN. PETITIONER: RESPONDENTS 1. SHANMUGHAN, HOUSE NO.10/83, KOLATHARA, CHERUVANNUR. 2. M.K.LALITHA, W/O.SHANMUGHAN, KOLATHARA, CHERUVANNUR. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENTS: 1. KARAYAKATH PRABHAKARAN, KUTHIKAD PARAMBU, HOUSE NO.10/53, KOLATHARA, CHERUVANNUR. 2. KARAYAKATH SUSEELA, KUTHIKKAD PARAMBU, KOLATHARA, CHERUVANNUR. 3. T.V.NABDULLA, HOUSE NO.10/51, KUTHAKKAD PARAMBA, KOLATHARA, CHERUVANNUR. 4. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY ADV. SRI.E.NARAYANAN FOR R1 & R2 PUBLIC PROSECUTOR SRI.C.M.NAZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = Crl.R.P.No.670 of 2005 = = = = = = = = = = = = = = Dated this the 2 nd day of June, 2008 ORDER Heard both sides. 2. The revision petitioners challenge the order dated 20.1.08 passed by the Sub Divisional Magistrate, Kozhikode peremptorily restraining the revision petitioners from reducing the width of the pathway from eight feet. The said order is purported to be a final order presumably issued under Section 138 Cr.P.C. 3. I perused the lower court records. 4. On 6.03.04, respondent Nos. 1 to 3 herein filed a petition before the Revenue Divisional Officer, Kozhikode contenting, inter alia, as follows:- The counter petitioners who are the new owners of the nearby residential building bearing No.10/1983 have attempted to reduce the width of the pathway used by the petitioners and others by constructing a compound wall along the pathway. The said pathway is the only access for ingress and egress to the Crl.R.P.No.670 of 2005 2 petitioners and others. Hence appropriate orders may be passed to restore the pathway to its original condition. 5. On the said application, the Revenue Divisional Officer, Kozhikode passed an order on 16.3.04 as follows:- “ Village Officer, Cheruvannur shall inspect the site at once and furnish details but the counter petitioners may be permitted to maintain status quo till the disposal of the case.” 6. Thereafter the revision petitioners, on coming to know of the above order, appeared before the Sub Divisional Magistrate. The Magistrate did not conduct any enquiry as contemplated under Section 137(3) Cr.P.C but passed the impugned order directing the revision petitioners as above. 7. Under Section 133 Cr.P.C if there is any unlawful obstruction on any public place or way is reported, the Sub Divisional Magistrate has to pass a conditional order directing the counter petitioners either to remove the obstruction or if he objects to do so, to appear before the Sub Divisional Magistrate or any Executive Magistrate sub-ordinate to him at the time and Crl.R.P.No.670 of 2005 3 place to be fixed by the order and show cause why the conditional order should not be made absolute. A perusal of the files reveals that no such conditional order was passed by the Sub Divisional Magistrate. He did not also call upon the counter petitioners allegedly causing the unlawful obstruction to the pathway to remove such obstruction and if the counter petitioners object to do so, to appear before the Sub Divisional Magistrate or before the Executive Magistrate subordinate to him at a time at and place to be fixed. 8. It is only if a conditional order is made under sub- section 133 Cr.P.C. for the purpose of preventing the alleged obstruction in the use of the way, and the person against whom the conditional order is made is given an opportunity to deny the existence of any public right in respect of the way, that the Magistrate can proceed further to conduct an enquiry under Section 137(3) Cr.P.C., in case the opposite party denies the existence of any public right in respect of the way in question. Without passing a conditional order under Section 133 Cr.P.C., the Magistrate could not have straightaway proceeded to pass a final order under Section 138 Cr.P.C. and that too without taking Crl.R.P.No.670 of 2005 4 evidence of the parties. The interim order passed by the Sub Divisional Magistrate on 16.3.2004, as extracted above, is not in confirmity with the provisions of the statute. Hence, the final order also cannot be sustained, and is accordingly, set aside and the matter is remitted to the Sub Divisional Magistrate to proceed, in accordance with law. The Magistrate can pass a final order under Section 138 Cr.P.C. only after passing a conditional order under Section 133 Cr.P.C. In case the Magistrate finds a good ground to proceed against the opposite party, he shall pass a conditional order under Section 133 Cr.P.C. and then proceed to dispose of the case, in accordance with law. Status quo as on today shall be maintained by both sides, until the Magistrate passes a final order under Section 138 Cr.P.C. or the Magistrate passes any injunction pending enquiry under Section 142 Cr.P.C. V. RAMKUMAR, JUDGE sj