IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 24TH SEPTEMBER 2008 / 2ND ASWINA 1930 Crl.MC.No. 3568 of 2008() ------------------------- MC.163/2007 of SUB DIVISIONAL MAGISTRATE, THRISSUR .................... PETITIONER: --------------- VENUGOPALAN, AGED 53 YEARS, S/O. KRISHNANKUTTY, KURUMBOOR HOUSE, KUNNAMKULAM VILLAGE, TALAPPILLY TALUK, THRISSUR DISTRICT. BY ADV. SRI.K.RAMACHANDRAN SRI.S.SREEDEV RESPONDENTS: ---------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. PRADEEP, S/O. MADHAVAN, PONNARASSERY VEEDU, KUNNAMKULAM VILLAGE, TALAPPILLY TALUK, THRISSUR DISTRICT. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 24/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R.BASANT, J ------------------------------------ Crl.M.C. No.3568 of 2008 ------------------------------------- Dated this the 24th day of September, 2008 ORDER Petitioner herein is counter petitioner No.2 in a proceedings initiated under Section 133 Cr.P.C by the Sub Divisional Magistrate, Trichur. He along with the 3rd counter petitioner are the tenants of a building, of which the 1st counter petitioner (the 2nd respondent herein) is the landlord. The Sub Divisional Magistrate had initiated proceedings under Section 133 Cr.P.C to compel the counter petitioners to demolish the building after vacating the same. The petitioner herein raised a contention that it was a mala fide action on the part of the landlord/1st counter petitioner. He went to the Sessions Court, Trichur in revision. By Annexure-1 order, the earlier final order passed under Section 138 Cr.P.C was set aside and the matter was remanded back for fresh disposal in accordance with law. 2. Thereafter a fresh conditional order (copy of which is produced as Annexure-2) has been passed. In Annexure-2 order, there is no reference at all to Annexure-1 order. Annexure-2 order is a conditional order under Section 133 Cr.P.C and in its core it directs counter petitioners 2 and 3 to vacate the Crl.M.C. No.3568 of 2008 2 dangerous building and counter petitioner No.1 to demolish the dilapidated building which is likely to fall at any time. Parties were directed under the conditional order either to comply with the order or to appear before the Sub Divisional Magistrate on 05.09.08 and show cause why the order should not be made absolute. 3. According to the petitioner (counter petitioner No.2), landlord (counter petitioner No.1) and counter petitioner No.3 are in collusion. Both of them have not appeared before the Sub Divisional Magistrate on 05.09.08. The case now stands posted to 26.09.08. The petitioner wants to raise objections against the impugned conditional order. He wants his objections to be considered and appropriate final orders passed under Section 138 Cr.P.C. 4. But the petitioner is apprehensive. He apprehends that on the strength of the conditional order, counter petitioners 1 and 3 may collusively bring down the building to the detriment of the petitioner. The petitioner is willing to appear before the Sub Divisional Magistrate and substantiate his contentions. But the short prayer is that there may be a direction that counter petitioner No.1 (respondent No.2 herein) should not, under the Crl.M.C. No.3568 of 2008 3 guise of Annexure-2 order, attempt to demolish the building before a final order is passed under Section 138 Cr.P.C. 5. I reckon the prayer to be absolutely justified. The petitioner has been directed to vacate and the counter petitioner No.1/landlord has been directed to demolish the building. The petitioner refuses to vacate. He has reasons to justify such refusal. Before the same is considered and appropriate decision is taken by the Sub Divisional Magistrate, I agree that the counter petitioner No.1 should not, under the guise of the impugned conditional order, be permitted to demolish or attempt to demolish the building in question. 6. I am, in these circumstances, satisfied that this Crl.M.C can be allowed and appropriate directions can be issued. I am satisfied that it is not necessary to wait for issue and return of notice to the respondents to dispose of this application. 7. In the result: i) This Crl.M.C is allowed; ii) There shall be a direction to respondents 1 and 2 herein that no attempt shall be made to demolish the building in question until final orders are passed in M.C.No.163 of 2007 by the Sub Divisional Magistrate, Trichur. Neither the 1st Crl.M.C. No.3568 of 2008 4 respondent nor the 2nd respondent shall be entitled to demolish the building before final orders are passed under Section 138 Cr.P.C. 8. Communicate the order to the Sub Divisional Magistrate, Trichur forthwith, who shall serve copy thereof on counter petitioners 1 and 3 in the M.C forthwith. 9. Hand over a copy of this order to the learned counsel for the petitioner. (R.BASANT, JUDGE) rtr/-