High Court Kerala High Court

M.A.Salam vs Kunjan on 20 January, 2009

Kerala High Court
M.A.Salam vs Kunjan on 20 January, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 4024 of 2008(C)


1. M.A.SALAM, AGED 54 YEARS,
                      ...  Petitioner

                        Vs



1. KUNJAN, S/O.CHAMI, THANDANARA,
                       ...       Respondent

2. VIJAYAN, S/O.MURUKAN,

3. STATE OF KERALA REPRESENTED BY PUBLIC

                For Petitioner  :SRI.V.M.KRISHNAKUMAR

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :20/01/2009

 O R D E R
                   M. SASIDHARAN NAMBIAR,J.

                -------------------------------------------------

                     CRL.R.P.NO.4024 OF 2008

                --------------------------------------------------

              Dated this the 20th day of January, 2009

                                 O R D E R

Revision petitioner is challenging the order passed by the

Sub Divisional Magistrate, Palakkad dropping proceedings under

section 133 of Code of Criminal Procedure based on a petition filed by

the revision petitioner to cause removal of the obstruction made by

first respondent across the road alleging that it was being used for

ingress and egress by the inhabitants of One Lakh House Colony. The

Sub Divisional Magistrate, Palakkad as per order dated 5.12.2006

directed first respondent to remove the obstruction within seven days.

That order was challenged before this Court in Crl.R.P.4440 of 2006.

As per order dated 7.3.2007 this Court set aside the order and

directed Sub Divisional Magistrate to reconsider the matter affording

opportunity to both sides to adduce evidence. The impugned order

was passed thereafter. As per the order, learned Magistrate dropped

the proceedings holding that the right claimed by the revision

petitioner is a right of easement as is clear from Ext.D10 and as no

public right is involved, proceedings under section 133 can only be

dropped. The order is challenged in this revision petition filed under

section 397 and 401 of Code of Criminal Procedure.

2. Learned counsel appearing for revision petitioner was

heard.

CRRP 4024/2008
2

3. The argument of the learned counsel is that the

inhabitants of One Lakh House Colony have a right of way in the

property and first respondent is not entitled to cause obstruction and

learned Magistrate should have proceeded under section 145 and

directed removal of the obstruction caused by first respondent and

should have found that an order is to be passed under section 145 of

Code of Criminal Procedure.

4. On hearing the learned counsel and going through the

impugned order passed by the Sub Divisional Magistrate, I find no

reason to interfere with the order. As rightly found by the Sub

Divisional Magistrate revision petitioner and inhabitants of One Lakh

House Colony is claiming right of a way. The said right is claimed

not on the basis that it is a public way, but a right of easement.

Therefore proceedings under section 133 will not lie. Though learned

counsel argued that proceedings should have been under section 145

of Code of Criminal Procedure for the reason that a breach of peace

exists, in respect of the right to use the way, so long as there is no

dispute with regard to possession, proceedings under section 145

cannot be initiated. In such circumstances revision is dismissed.

M. SASIDHARAN NAMBIAR, JUDGE

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