High Court Kerala High Court

Ramani Jayaram vs Sub Divisional Magistrate on 16 October, 2008

Kerala High Court
Ramani Jayaram vs Sub Divisional Magistrate on 16 October, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 2938 of 2006(Y)


1. RAMANI JAYARAM, AGED 61 YEARS,
                      ...  Petitioner

                        Vs



1. SUB DIVISIONAL MAGISTRATE, THRISSUR.
                       ...       Respondent

2. AMMINI, W/O.RAGHAVAN,

3. DR.V.K.MOHANAN,

4. RAJESH GEORGE,

                For Petitioner  :SRI.DINESH MATHEW J.MURICKEN

                For Respondent  :SRI.G.SREEKUMAR (CHELUR)

The Hon'ble MR. Justice THOMAS P.JOSEPH

 Dated :16/10/2008

 O R D E R
                                THOMAS P. JOSEPH, J.
                               --------------------------------------
                               W.P.(C) No.2938 of 2006 Y
                               --------------------------------------
                     Dated this the 16th day of October, 2008.

                                         JUDGMENT

Heard counsel for writ petitioner and the Public Prosecutor. There

is no representation for respondents 2 to 4.

2. Respondents 2 to 4 filed Ext.P1, complaint before the first

respondent seeking action under Section 133 of the Code of Criminal Procedure

(for short, `the Code’). According to them, the pathway being used by them was

obstructed by the writ petitioner. First respondent obtained report of the

Tahsildar concerned and issued Ex.P2, conditional order dated 1.6.2005 calling

upon the petitioner to comply with the said order or to show cause why

conditional order should not be made absolute. Pursuant to Ext.P2, petitioner

appeared before the first respondent and filed counter statement (Ext.P3)

wherein it is inter alia contended that the disputed pathway is private way of the

petitioner. Petitioner states that disregarding the provisions of Section 137(1) of

the Code, first respondent is proceeding to conduct enquiry under Section 138

of the Code and pass orders. Petitioner therefore, seeks a direction to the first

respondent to comply with the provisions of Section 137 (1) of the Code before

going into the enquiry under Section 138 of the Code.

3. I find from Ext.P3 that writ petitioner has raised a contention

that the way in question is her private way. In other words, existence of public

WP(C) No.2938/2006

2

right over disputed way has been denied by the petitioner. In that situation,

Section 137 (1) of the Code required the first respondent to conduct enquiry into

the existence of public right. It is only when it is found in such enquiry that there

is no reliable evidence in support of the denial of public right that first respondent

could pass on to the enquiry under Section 138 of the Code. First respondent

has to follow the procedure prescribed under the Code before passing final

orders in the matter.

Writ Petition is therefore, disposed of directing first respondent to conduct

enquiry as provided under Section 137 (1) of the Code before initiating further

action on the matter.

THOMAS P.JOSEPH,
JUDGE.

cks