High Court Kerala High Court

Govindankuttynair vs A.K. Kamallakshi Amm on 4 February, 2009

Kerala High Court
Govindankuttynair vs A.K. Kamallakshi Amm on 4 February, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.MC.No. 4175 of 2008()


1. GOVINDANKUTTYNAIR, CHEMMATTU HOUSE,
                      ...  Petitioner

                        Vs



1. A.K. KAMALLAKSHI AMM,
                       ...       Respondent

2. STATE OF KERALA, REP. BY THE PUBLIC

                For Petitioner  :SRI.G.SREEKUMAR (CHELUR)

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice R.BASANT

 Dated :04/02/2009

 O R D E R
                             R.BASANT, J
                     ------------------------------------
                     Crl.M.C. No.4175 of 2008
                     -------------------------------------
              Dated this the 4th day of February, 2009

                                 ORDER

Petitioner claims to be aggrieved by the impugned order

passed under Section 138 Cr.P.C by the Sub Divisional

Magistrate. The said order has been upheld by the learned

Sessions Judge in revision.

2. It was complained by the respondent herein that

obstruction was caused to a public pathway by the petitioner.

The S.D.M passed a conditional order calling upon the petitioner

herein to remove such obstructions. It was asserted that there

was a public pathway and the said public pathway is obstructed

by a fencing done by the petitioner trespassing into the public

pathway and by the adamant refusal to remove certain bamboo

clusters which had grown into the pathway from the property of

the petitioners. In response to the conditional order the

petitioner appeared and raised objections. Precise objection, as

can now be ascertained, is not that there is no public pathway or

public right in respect of the pathway, but only that there is no

obstruction to the pathway. Inasmuch as there was a confusing

Crl.M.C. No.4175 of 2008 2

objection raised in the counter statement it appears that

opportunity has been granted to adduce evidence under Section

137 Cr.P.C. But no evidence was adduced by the petitioner. It is

thereafter that the S.D.M proceeded to pass orders under

Section138 Cr.P.C. The village officer had inspected the

property. As requested by both sides, the S.D.M had also

inspected the property. It was found that there was obstruction

caused to the pathway by the bamboo clusters in the property of

the petitioner growing into the pathway. It was also found that a

fencing constructed for the property of the petitioner was

obstructing the pathway.

3. The learned counsel for the petitioner submits that

the proper procedure under Section 138 Cr.P.C has not been

followed. Even though it is not virtually disputed now that there

existed a pathway; that public had a right to go through the

pathway and that the attempt is only to widen the said pathway,

the counsel contends that in view of the objection raised, the

matter must have been posted for enquiry under Section 137

Cr.P.C. I do not find any merit in this contention. It is now

evident that what is in dispute is not whether there is a public

pathway or public right in respect of the pathway, but only about

Crl.M.C. No.4175 of 2008 3

the width of the pathway. In these circumstances on the

materials as now revealed it is evident that the omission to

conduct a complete enquiry under Section 137 Cr.P.C and pass

orders under Section137 Cr.P.C has not resulted in any

miscarriage of justice. I repeat that the objection now raised is

only that the pathway was attempted to be widened and not that

the pathway did not exist or that there was no right for the

public to use the pathway.

4. Undaunted the counsel for the petitioner submits that

no enquiry under Secton 138 Cr.P.C has been conducted.

Technically the contention appears to be correct. But it lacks in

substance. The allegation is only that the bamboo cluster had

grown into the pathway and the same is not removed. That is

precisely what has been directed by the S.D.M in the impugned

order under Section 138 Cr.P.C. About a fencing constructed on

the side of the property of the petitioner also, though no formal

and complete enquiry has been conducted under Section 138

Cr.P.C, we have materials to show that such fencing has been

constructed obstructing the pathway. In these circumstances

the grievance that a proper enquiry under Section 138 Cr.P.C

has not been conducted does also pale into insignificance.

Crl.M.C. No.4175 of 2008 4

5. I must alertly remind myself that I am called upon to

invoke and exercise the extraordinary inherent jurisdiction

which is available to this Court under Section 482 Cr.P.C.

Second revision against the order under Section 138 Cr.P.C is

barred in the light of Section 389(3) Cr.P.C. But that explains

why the petitioner has come to this Court affixing the label of

Section 482 Cr.P.C on his petition. I must take note of the

contours of the jurisdiction of this Court. Unless this Court is

convinced that failure of justice results, it is not at all necessary

for this Court to invoke the jurisdiction under Section 482 Cr.P.C

against an order confirmed in revision by the Sessions Court. I

do not find any such reasons to assume or conclude that justice

would fail or miscarriage of justice would result by the impugned

order.

6. I am, in these circumstances, satisfied that

notwithstanding the technical inadequacies pointed out by the

learned counsel for the petitioner the impugned order confirmed

in revision does not warrant interference.

7. This Crl.M.C is accordingly dismissed.

(R.BASANT, JUDGE)
rtr/-