IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 613 of 2009()
1. ANSON D.M., AGED 42 YEARS,
... Petitioner
Vs
1. THE SUB DIVISIONAL MAGISTRATE,
... Respondent
2. THE CIRCLE INSPECTOR OF POLICE,
3. THE VILLAGE OFFICER,
4. M.K. KRISHNAN, MANGAT HOUSE,
For Petitioner :SRI.V.M.KURIAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :09/06/2009
O R D E R
M.SASIDHARAN NAMBIAR,J.
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CRL.M.C.NO. 613 OF 2009
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Dated 9th June 2009
O R D E R
This petition is filed under Section 482 of Code
of Criminal Procedure to quash Annexure 6 order passed
by first respondent, Sub Divisional Magistrate,
Muvattupuzha dated 2-3-2005 in A3.804/2004. Sub
Divisional Magistrate passed that order purportedly
under Section 133 of Code of Criminal Procedure on a
complaint received from fourth respondent. From the
case records of Sub Divisional Magistrate, made
available by learned Public Prosecutor, it is seen
that on 29-1-2004 fourth respondent filed a complaint
before Revenue Divisional Officer, Muvattupuzha
stating that with regard to the obstruction of a way
being used by fourth respondent and his neighbours
caused by Moolamattathil Devassia and his children
Manuel and petitioner herein, a complaint was filed by
fourth respondent on 28-5-2003 and the matter was
enquired by Revenue Divisional Officer on 21-12-2003
and inspite of the promise to take action, no action
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was taken. It was contended that due to the inaction,
Devassia and his children had closed the way and it is
causing much difficulty to the children to go to
nursery school and therefore immediate action is to be
taken.
2. The file shows that a report was called for
from the Village Officer by the Revenue Divisional
Officer and a report dated 3-2-2004 was received.
Thereafter notice was issued to fourth respondent,
Devassia and Manual directing them to appear on 15-3-
2004, then to 5-7-2004, then to 6-9-2004 and then to
20-10-2004. The file does not disclose what
transacted on the respective dates. On 8-2-2005 a
conditional order was passed under Section 133 of Code
of Criminal Procedure directing Devassia and Manual to
take immediate and effective steps to remove the
obstruction in the pathway within one week on receipt
of the order or to appear before the Court on
28-2-2005 and show cause why this order should not be
made absolute. From a reading of the order, the said
order satisfies a conditional order as provided under
Section 133 of Code of Criminal Procedure. The case
records do not show what happened on 28-2-2005. It
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does not show that counter petitioners, Devassia and
Manual, did not appear and did not show any cause or
if they had appeared whether they were questioned as
provided under Section 137 of Code of Criminal
Procedure and if so, whether they disputed the
existence of the public right or not. It is seen from
the records that a statement is filed by the counter
petitioners therein dated 1-3-2005 for condoning their
failure to appear on the previous posting date and to
set aside the conditional order. Annexure 6 order was
thereafter seen passed on 2-3-2005 purportedly under
Section 133 of Code of Criminal Procedure (and not
under Section 138). The order shows that it has been
made to appear to Sub Divisional Magistrate that the
pathway that passed near to the property of counter
petitioners and ends at the property of the petitioner
is closed down and obstructed and therefore Sub
Divisional Magistrate do thereby directed the counter
petitioners Devassia and Manual to take immediate and
effective steps to remove the obstruction in the
pathway. Annexure-6 order is sought to be quashed by
filing this petition under Section 482 of Code of
Criminal Procedure by the petitioner, who is not a
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party to the proceedings. He is the son of first
counter petitioner Devassia before the Sub Divisional
Magistrate. According to the petitioner, first
counter petitioner in the proceedings, Devassia, sold
the property in his favour as per Annexure 1 Sale Deed
dated 1-3-2004 and he did not get any notice in the
proceedings and so Annexure-6 order is illegal and has
to be quashed.
3. Learned Counsel appearing for fourth
respondent submitted that after Annexure 6 order was
passed first counter petitioner challenged that order
before this Court in W.P.(C) No.7448/2005 and the Writ
Petition was dismissed on 4-3-2005 finding that
remedy of the petitioner therein is to file a revision
challenging that order.
4. Learned counsel argued that in spite
of the writ petition, the father and brother of the
petitioner did not challenge that order by filing a
revision and the order became final and as the order
passed under Section 138 of Code of Criminal Procedure
was not executed, fourth respondent was compelled to
file Crl.M.C.4506/2008 before this court which was
disposed on 27/1/2009 with a direction to the Sub
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Divisional Magistrate to execute the order and it is
thereafter the present petition is filed without any
bonafides. Learned counsel also argued that as seen
from the order in I.A.682/2005 and I.A.1066/2005 in
O.S.123/2005 on the file of Munsiff court,
Muvattupuzha available in the case records produced by
the Public Prosecutor, case of the petitioner in this
petition can only be rejected as the petitioner was
aware of the proceedings pending before the Sub
Divisional Magistrate and in such circumstances when
the validity of the proceedings under Annexure-6
order was upheld by this court in the writ petition,
as well as in the earlier criminal M.C., a different
view cannot be taken and therefore the petition can
only be dismissed.
5. Section 133 of Code of Criminal
Procedure enables the Sub Divisional Magistrate or
Executive Magistrate, on receiving a report of police
officer or other information and on taking such
evidence which he thinks fit, and considers that
any unlawful obstruction or nuisance should be removed
from any public place or from any way, river or
channel which is or may be lawfully used by the
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public, to pass a conditional order requiring the
person causing such obstruction or nuisance to remove
such obstruction or nuisance within a time to be fixed
in the order and if he objects so to do, to appear
before himself or some other Executive Magistrate at
a time and place to be fixed by the order and show
cause why the order should not be made absolute.
Section 136 provides the consequence of failure to
comply with the order. Under the said section, if such
person does not perform the said act or failed to
appear and show cause he shall be liable to the
penalty prescribed under Section 188 of Indian Penal
Code and the conditional order shall be made absolute.
Section 137 prescribes the procedure to be followed by
the Magistrate when such person appears before
Magistrate. Under Section (1) when such person appears
the Magistrate is bound to question him whether he
denies the existence of any public right in respect of
the way or not and if, he denies the existence of
public right, under sub section 2 the Magistrate has
to conduct an enquiry and find whether there is any
reliable evidence in support of such denial. If it is
found that there is reliable evidence to support the
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denial, he shall stay the proceedings till a civil
court decides that question and if not Magistrate has
to proceed as provided under Section 138. A final
order under Section 138 could be passed only after an
enquiry including recording the evidence as in a
summons case as provided therein. Thereafter,
Magistrate can either make the order absolute as it is
or with modification and and if he is not satisfied,
can drop the proceedings. This is the procedure which
is to be followed by any Sub Divisional Magistrate.
Question is whether Annexure-6 order was passed by
complying with this procedure.
6. Annexure-6 order as is seen from the
records of the Sub Divisional Magistrates is not
passed either under Sections 133, 136 or 138. A
conditional order under Section 133 was passed much
earlier and no further order is seen passed as
provided under the order. Annexure-6 order is not the
final order either under Section 136 or 138. If the
counter petitioners against whom conditional order
under Section 138 was passed did not appear, Sub
Divisional Magistrate is competent to make the
conditional order absolute as provided under Section
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136. Annexure-6 order dated 2/3/2005 does not show
that, that order was passed for the failure of counter
petitioners therein to appear or to show cause. If
that be so, a final order could be passed only after
enquiry as provided under Section 138 therein. The
order does not show that any such enquiry was
conducted. Records also show that no witness was
examined as in the summons case and even the factum
of existence of public way or its obstruction was
considered. Annexure-6 order shows that as it has
been made to appear to the Sub Divisional Magistrate
that pathway near to the property of counter
petitioners and ends at the property of the fourth
respondent was closed down and obstructed, counter
petitioners were directed to take immediate steps to
remove the obstruction in the pathway. Records shows
that even though based on the complaint received from
the fourth respondent a report was called for from
the Village Officer, based on that report dated
3/2/2004, no order was passed till a conditional order
was passed on 28/2/2005. Proceedings under Section 133
is seen initiated only with effect from the said
order. Though records shows that statement of the
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counter petitioners were filed denying the existence
of the way, Sub Divisional Magistrate has not
conducted any enquiry to find out whether there is
reliable evidence to support the denial and it was
obstructed and if so, whether fourth respondent is
entitled to get an order as provided under Section 138
of Code of Criminal Procedure. Therefore, the entire
proceedings taken by the Sub Divisional Magistrate is
in violation of the provisions of Sections 133 to 138
of Code of Criminal Procedure and therefore illegal.
7. Though learned counsel appearing for
fourth respondent submitted that the order was upheld
by this court in the earlier proceedings and therefore
a different view cannot be taken, I find from the
judgment in W.P.C.7448/2005 that this court did not
consider validity of Annexure-6 order. That writ
petition was disposed holding that the writ petitioner
has a remedy of filing a revision challenging that
order and therefore the writ petition is not
maintainable. In Criminal M.C filed by the fourth
respondent also, the validity of the order passed
under Section 138 was not considered with reference to
the records of the Sub Divisional Magistrate. There
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was no finding that, that order was passed by
complying with the proceedings provided in the Code
of Criminal Procedure. Hence, those orders will not
fetter this court from interfering with Annexure-6
order. When it is found that the order was passed in
violation of the procedure. When petitioner is
challenging the validity of the order and the records
of the Sub Divisional Magistrate was made available
and it is found that order was passed without
complying with the procedure and therefore illegal,
this court is bound to correct the mistake committed
by the Sub Divisional Magistrate.
8. Hence Annexure-6 order passed by the Sub
Divisional Magistrate is quashed. It is made clear
that Sub Divisional Magistrate is entitled to proceed
from the stage under Section 133. As subsequent to
the petition originally filed by fourth respondent,
first counter petitioner therein had transferred the
property in favour of the petitioner herein,
petitioner is entitled to appear before the Sub
Divisional Magistrate. Sub Divisional Magistrate on
such appearance shall question him whether he denies
existence of public right as provided under Section
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137(1). Fourth respondent and petitioner are directed
to appear before the Sub Divisional Magistrate on
8/7/2009. Petitioner shall file a statement, if any,
on that day. Sub Divisional Magistrate shall the
question the petitioner as provided under Section 137
whether he denies the public way or not. If he denies
as provided under Section 137(2), Sub Divisional
Magistrate shall conduct an enquiry and if it is found
that there is no reliable evidence, Magistrate shall
proceed under Section 138 and only after recording the
evidence in a summons case, the final order is to be
passed. It is made clear that what is to be decided by
the Sub Divisional Magistrate is not the present
stage of the way but that on the date on which the
first order under Section 133. Sub Divisional
Magistrate to pass final order within six months from
the date of appearance of the parties.
M.SASIDHARAN NAMBIAR,
JUDGE.
uj.