IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl Rev Pet No. 3818 of 2007()
1. C.P.KUNJAN @ THANKAPPAN,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. LONAPPAN, S/O.PAILY,
3. V.V.VENU, S/O.VELAYUDHAN PILLAI,
For Petitioner :SRI.PHILIP T.VARGHESE
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.RAMKUMAR
Dated :23/11/2007
O R D E R
V. RAMKUMAR , J
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CRL.R.P. NO. 3818 OF 2007
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Dated this the 23rd day of November, 2007.
ORDER
The revision petitioner, who was the counter petitioner in
M.C. No. 25/2006 on the file of the Sub Divisional Magistrate,
Muvattupzha, challenges the order dated 03.08.2007 passed by
the Sub Divisional Magistrate purportedly under Section 138(1)
Cr.P.C.
2. The Sub Divisional Magistrate was moved by
respondents 2 and 3 herein under Section 133 Cr.P.C alleging
that a sluice thodu passing through the property of the revision
petitioner was obstructed by the revision petitioner herein and
thereby causing public nuisance to the applicants before the Sub
Divisional Magistrate.
3. On 23.09.2006 the Sub Divisional Magistrate passed a
conditional order under Section 133(1) Cr.P.C. After receipt of
the conditional order, the revision petitioner herein who was the
counter petitioner filed objections before the Sub Divisional
Magistrate contending inter alia that there was no such thodu as
CRL. R.P. NO. 3818/2007 : 2 :
alleged and that there was no obstruction to the public thodu as
alleged. Thereafter the matter drifted aimlessly. Finally, as per
the impugned order dated 03.08.2007 the Sub Divisional
Magistrate, relying on the report of the Village Officer,
Koovappady and the report of the Executive Engineer, PVIP,
Division No.1, Perumbavoor, made the conditional order absolute
directing the revision petitioner to reconstruct the thodu
immediately on receipt of the order. It is the said order which is
assailed in this revision.
4. I heard both sides. The legal position is that when the
opposite party appears and shows cause against the conditional
order, the Magistrate has to conduct an enquiry and record the
evidence as if in a summons case. The burden of proof in an
enquiry under Section 138 Cr.P.C is on the party at whose
instance the proceedings were initiated. [(1966 KLT 1100)-
Balan v. State of Kerala and (1977 KLT 329)-Ayisumma v.
Nabeesa Umma] Even when the opposite party who denies
existence of the public way or public water course fails to appear
at a subsequent stage, the Magistrate cannot automatically make
CRL. R.P. NO. 3818/2007 : 3 :
the conditional order absolute. He will have to take evidence on
behalf of the complainant.(See 1968 KLT 889- Ittiathikunjan v.
Lakshmikuttiamma, 1961 KLT 617- Ambi v. State of Kerala,
Sankaran v. Kunjukrishnan (1968 KLT 859)] After taking
evidence, the Magistrate should be satisfied that the conditional
order is reasonable and proper. It is thereafter that he has to
pass the final order either making the conditional order absolute
with or without modifications. The impugned order cannot be
supported since the Magistrate did not conduct an enquiry nor did
he take an evidence either in support of the complaint or in
support of the denial. The impugned order is accordingly set
aside. The matter is remitted to Sub Divisional Magistrate,
Muvattupuzha for disposal afresh. The parties shall appear
before the learned Magistrate without any further notice on
18.12.2007. The Magistrate shall dispose of the M.C. in
accordance with law.
The Crl.R.P is disposed of accordingly.
V. RAMKUMAR, JUDGE.
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