IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 4175 of 2008()
1. GOVINDANKUTTYNAIR, CHEMMATTU HOUSE,
... Petitioner
Vs
1. A.K. KAMALLAKSHI AMM,
... Respondent
2. STATE OF KERALA, REP. BY THE PUBLIC
For Petitioner :SRI.G.SREEKUMAR (CHELUR)
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :04/02/2009
O R D E R
R.BASANT, J
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Crl.M.C. No.4175 of 2008
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Dated this the 4th day of February, 2009
ORDER
Petitioner claims to be aggrieved by the impugned order
passed under Section 138 Cr.P.C by the Sub Divisional
Magistrate. The said order has been upheld by the learned
Sessions Judge in revision.
2. It was complained by the respondent herein that
obstruction was caused to a public pathway by the petitioner.
The S.D.M passed a conditional order calling upon the petitioner
herein to remove such obstructions. It was asserted that there
was a public pathway and the said public pathway is obstructed
by a fencing done by the petitioner trespassing into the public
pathway and by the adamant refusal to remove certain bamboo
clusters which had grown into the pathway from the property of
the petitioners. In response to the conditional order the
petitioner appeared and raised objections. Precise objection, as
can now be ascertained, is not that there is no public pathway or
public right in respect of the pathway, but only that there is no
obstruction to the pathway. Inasmuch as there was a confusing
Crl.M.C. No.4175 of 2008 2
objection raised in the counter statement it appears that
opportunity has been granted to adduce evidence under Section
137 Cr.P.C. But no evidence was adduced by the petitioner. It is
thereafter that the S.D.M proceeded to pass orders under
Section138 Cr.P.C. The village officer had inspected the
property. As requested by both sides, the S.D.M had also
inspected the property. It was found that there was obstruction
caused to the pathway by the bamboo clusters in the property of
the petitioner growing into the pathway. It was also found that a
fencing constructed for the property of the petitioner was
obstructing the pathway.
3. The learned counsel for the petitioner submits that
the proper procedure under Section 138 Cr.P.C has not been
followed. Even though it is not virtually disputed now that there
existed a pathway; that public had a right to go through the
pathway and that the attempt is only to widen the said pathway,
the counsel contends that in view of the objection raised, the
matter must have been posted for enquiry under Section 137
Cr.P.C. I do not find any merit in this contention. It is now
evident that what is in dispute is not whether there is a public
pathway or public right in respect of the pathway, but only about
Crl.M.C. No.4175 of 2008 3
the width of the pathway. In these circumstances on the
materials as now revealed it is evident that the omission to
conduct a complete enquiry under Section 137 Cr.P.C and pass
orders under Section137 Cr.P.C has not resulted in any
miscarriage of justice. I repeat that the objection now raised is
only that the pathway was attempted to be widened and not that
the pathway did not exist or that there was no right for the
public to use the pathway.
4. Undaunted the counsel for the petitioner submits that
no enquiry under Secton 138 Cr.P.C has been conducted.
Technically the contention appears to be correct. But it lacks in
substance. The allegation is only that the bamboo cluster had
grown into the pathway and the same is not removed. That is
precisely what has been directed by the S.D.M in the impugned
order under Section 138 Cr.P.C. About a fencing constructed on
the side of the property of the petitioner also, though no formal
and complete enquiry has been conducted under Section 138
Cr.P.C, we have materials to show that such fencing has been
constructed obstructing the pathway. In these circumstances
the grievance that a proper enquiry under Section 138 Cr.P.C
has not been conducted does also pale into insignificance.
Crl.M.C. No.4175 of 2008 4
5. I must alertly remind myself that I am called upon to
invoke and exercise the extraordinary inherent jurisdiction
which is available to this Court under Section 482 Cr.P.C.
Second revision against the order under Section 138 Cr.P.C is
barred in the light of Section 389(3) Cr.P.C. But that explains
why the petitioner has come to this Court affixing the label of
Section 482 Cr.P.C on his petition. I must take note of the
contours of the jurisdiction of this Court. Unless this Court is
convinced that failure of justice results, it is not at all necessary
for this Court to invoke the jurisdiction under Section 482 Cr.P.C
against an order confirmed in revision by the Sessions Court. I
do not find any such reasons to assume or conclude that justice
would fail or miscarriage of justice would result by the impugned
order.
6. I am, in these circumstances, satisfied that
notwithstanding the technical inadequacies pointed out by the
learned counsel for the petitioner the impugned order confirmed
in revision does not warrant interference.
7. This Crl.M.C is accordingly dismissed.
(R.BASANT, JUDGE)
rtr/-