IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 14TH JULY 2011 / 23RD ASHADHA 1933 Crl.Rev.Pet.No. 981 of 2011() -------------------------------------------- M.C.1/2011 OF THE TAHSILDAR AND EXECUTIVE MAGISTRATE,KOZHIKODE .... PETITIONER(S): RESPONDENT: ------------------------------------------------ MUHAMMAD, PANICHIYIL, PALATH, CHLANNUR.P.O, KOZHIKODE. BY ADV. SRI.J.OM PRAKASH RESPONDENT(S): PETITIONERS AND THE STATE: -------------------------------------------------------------------------- 1. HAMEED.K.KP, PANACHIYIL, PALATH, CHELANNUR.P.O, KOZHIKODE. 2. THARUVAIKUTTY, -DO-..DO.... 3. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADVS. SRI.JACOB ABRAHAM, SMT.KOCHUMOL KODUVATH. R3 BY PUBLIC PROSECUTOR SRI. SABU SREEDHARAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss CRRP.NO.981/2011 APPENDIX PETITIONER'S ANNEXURES: ANNEX.A: COPY OF THE ORDER DATED 27/12/2011 OF THE SUB DIVISIONAL MAGISTRATE, KOZHIKODE. RESPONDENT'S ANNEXURES: N I L /TRUE COPY/ P.A.TO JUDGE Kss S.S.SATHEESACHANDRAN, J -------------------------------------- Crl.R.P No.981 OF 2011 -------------------------------- Dated this the 14th day of July 2011 ORDER The final order passed by an Executive Magistrate in a proceeding under Section 133 of the Code of Criminal Procedure is challenged in this revision, by the opposite party proceeded against alleging that he had caused obstruction to a public way, and thereby caused public nuisance. To the notice issued on initiation of such proceedings, the revision petitioner, the opposite party appeared before the executive Magistrate and filed his objections. Thereafter, as seen from the order passed by the Executive Magistrate, the only inquiry conducted by him to determine whether there was a public nuisance warranting an order under Chapter XB of the Code of Criminal Procedure, to abate public nuisance, was conducting of a local inspection. On the basis of the finding made on local inspection, he has made the preliminary order passed in the proceeding absolute. Propriety and correctness of that order is assailed in this revision. 3. The 1st respondent, one of the two petitioners who approached the Executive Magistrate with the complaint of obstruction to a public way by the revision petitioner, on receipt of Crl.R.P No.981/2011 - 2 - notice has entered appearance. Notice is yet to be served on 2nd respondent, the other petitioner, who is stated to be the brother of the 1st respondent. Completion of service on the 2nd respondent is found unnecessary as there is representation on behalf of the petitioners in the proceedings by at least one of them, the 1st respondent. 4. Obstruction to a public way, which would involve public nuisance is covered by Section 133(a) of the Code of Criminal Procedure; and, in any proceedings in relation to such a complaint is initiated and objection is raised by the opposite party denying the public right, or the imputation made against him as to causing of nuisance, necessarily, the complaint has to be disposed recording evidence. On the basis of local inspection alone, such proceedings cannot be decided, more so for the reason that the adjudication, though of summary nature, affect substantive rights of the parties, which are in the nature of a civil dispute. At least the evidence of the complainant, who imputes a public nuisance by the opposite party has to be recorded by the Magistrate, to form an opinion whether there is any merit in his complaint. What is the procedure to be followed in such a proceeding depends upon the nature of objections raised by the opposite party; and, if there is a denial of public right, inevitably he has to be given an opportunity to Crl.R.P No.981/2011 - 3 - substantiate that his denial was bonafide. If the denial of public right is supported by reliable evidence, the Magistrate has to stay the proceedings until the existence of the right claimed is decided by a competent court. When such be the procedure laid down by the Code to decide the proceedings covered by Section 133 of the Code of Criminal Procedure, the impugned order passed by the learned Magistrate only on the basis of his local inspection is totally unsustainable. The order impugned is set aside and the case is remitted to the Execution Magistrate to pass appropriate orders in accordance with law, after issuing notice to all parties to the proceedings. Revision allowed. Sd/- vdv S.S.SATHEESACHANDRAN, JUDGE //True Copy// P.A to Judge