IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 4035 of 2008()
1. CHERAKKATTIL ABDULLAH
... Petitioner
Vs
1. C.K.MUSTHAFA, S/O.KUNHAHAMMED,
... Respondent
2. STATE OF KERALA
For Petitioner :SRI.MILLU DANDAPANI
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice P.S.GOPINATHAN
Dated :07/10/2009
O R D E R
P.S.GOPINATHAN, J.
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Crl.R.P.No.4035 of 2008.
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Dated this the 7th day of October, 2009.
O R D E R
The revision petitioner is the counter-petitioner in
CMP.No.8/2007 on the file of the Sub Divisional Magistrate,
Perinthalmanna. The first respondent herein filed the above
petition with an allegation that there existed a public path
way passing through the western side of the AMLP School,
Edaikkad and that the revision petitioner who is the
counter-petitioner before the lower court had obstructed
the path way. Being satisfied with a prima facie case, the
Sub Divisional Magistrate issued a conditional order under
Section 133(1) of the Code of Criminal Procedure. The
respondent was called upon to show cause for not making
the order absolute, if not complied with.
2. The revision petitioner entered appearance and
filed objection stating that there existed no public path way
as alleged by the respondents herein.
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3. The learned Sub Divisional Magistrate called for a
report from the Village Officer and Addl.Tahsildar. Then
witnesses from either side were examined and seven
documents were exhibited. The learned Magistrate finally
arrived at a conclusion that there existed a road on the
western side of the AMLP School, Edaikkal and it was
objected by the revision petitioner herein by constructing
steps. Accordingly, interim order was made absolute and
the revision petitioner was directed to remove the steps so
constructed.
4. Assailing the correctness, legality and propriety of
the order impugned, this revision petitioner was filed.
Learned counsel on both sides and the learned Public
Prosecutor were heard.
5. As regards the existence of the path way there is
oath against oath. During the pendency of the proceedings
the revision petitioner instituted a suit as OS.No.120/2008
before the Munsiff’s Court, Perinthalmanna for a permanent
prohibitory injunction with an allegation against the
Crl.R.P.No.4035 of 2008.
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respondent that he had been attempting to trespass into the
plaint schedule property. According to the revision
petitioner, the plaint schedule property covers so called
disputed path way. Regarding the identity of the property
there is dispute. I find that at this stage it need not be
probed into in this proceedings. However, the revision
petitioner took out a commission. The advocate
commissioner inspected the property and filed a report
along with a sketch. Copy of the report of the commission,
along with sketch, certified copy of the document relating to
the property of the respondent, which were marked as
Ext.P7, were produced during the course of enquiry.
Though the copy of the document was marked as Ext.P7,
the lower court didn’t mark the report and sketch submitted
by the commissioner. According to the learned counsel for
the revision petitioner, there is no good reason for not
marking report and sketch which would indicate that there
exist no public path way as contended by the respondent.
The learned counsel for the revision petitioner further
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argued that because of the non marking of the documents,
he was denied an opportunity to present his case. It was
also argued that the report submitted by the Village Officer
would justify the report submitted by the commissioner and
it is ignoring that the report of the Village Officer that there
exist no path way, the order impugned was passed.
6. Admittedly, the revision petitioner had taken up
the matter before the civil court. In the above
circumstance, especially in view of Section 137(2) Crl.P.C.,
I find that the lower court should have refrained from
passing an order like the one impugned. A reading of
Sec.137(1) and (2) would be appropriate. It reads as
follows:
“137. Procedure where existence of
public right is denied:- (1) Where an
order is made under section 133 for the
purpose of preventing obstruction, nuisance
or danger to the public in the use of any way
river, channel or place, the Magistrate shall,
on the appearance before him of the person
against whom the order was made, question
him as to whether he denies the existence of
any public right in respect of the way, river,
channel or place, and if he does so, the
Magistrate shall, before proceeding underCrl.R.P.No.4035 of 2008.
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section 138, inquire into the matter.”
(2) If in such inquiry the Magistrate
finds that there is any reliable evidence in
support of such denial, he shall stay the
proceedings until the matter of the
existence of such right has been decided by
a competent Court; and if he finds that
there is no such evidence, he shall proceed
as laid down in section 138.”
7. In this case, Ext.P7 document produced by the
revision petitioner would show that there was no public
path way leading to the property of the respondent as
contended by the revision petitioner. On a prim facie
perusal of the report of the commission also would show
that there existed no public path way leading to the
property of the respondent. In the above circumstance,
there is some reliable evidence in support of such denial.
That being the materials on record, the lower authority
would have stayed the proceedings as contemplated under
Sec.137(2) Crl.P.C. until the matter has been decided by
the competent civil court. In this view of the matter, I find
that the order impugned is not sustainable and it is liable to
be set aside and the proceeding is to be stayed under
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Sec.137(2) Crl.P.C.
8. In the result, the revision petition is allowed. The
order impugned is set aside and remanded back to the
lower authority for fresh disposal after the disposal of the
suit OS.No.120/2008 on the file of the Munsiff’s Court,
Perinthalmanna. Till the civil suit is decided, the
proceedings would stand stayed under Sec.137(2) Crl.P.C.
9. The learned counsel for the respondent submitted
for a direction to maintain status quo. Since the matter has
been seized by the civil court the parties are bound to
maintain status quo till the suit is disposed or until
otherwise it was ordered by the civil court or thereafter an
order is passed by the lower court, in case it was
warranted. The lower court shall dispose of the proceeding
untrammelled by the observations made in this order.
P.S.GOPINATHAN, JUDGE.
Kvs/-