IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 137 of 2009()
1. JOSE MATHEW, MATHEKKAL HOUSE,
... Petitioner
Vs
1. BIJU BALAKRISHNAN, S/O. BALAKRISHNAN,
... Respondent
2. THE STATE OF KERALA,
For Petitioner :SRI.BABU S. NAIR
For Respondent :SRI.K.JAJU BABU
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :04/06/2009
O R D E R
THOMAS P. JOSEPH, J.
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Crl.R.P.No.137 of 2009
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Dated this the 4th day of June, 2009.
ORDER
Heard counsel for petitioner, respondent No.1 and the Public Prosecutor.
2. This revision is in challenge of the final order passed by Sub
Divisional Magistrate, Muvattupuzha in M.C.No.61 of 2008 under Section 138 of
the Code of Criminal Procedure (for short, “the Code”) directing petitioner to
remove the cowdung pit in his property. Respondent No.1 filed complaint
before the Sub Divisional Magistrate alleging that the cowdung pit constructed in
the property of petitioner is so close to the well in his property that drinking
water in the well is being polluted. It caused nuisance to him and others.
Complaint was got enquired through Village Officer, Kuttampuzha who submitted
a report. Sub Divisional Magistrate also obtained the report of the Medical
Officer, Kuttampuzha as to the alleged pollution of drinking water. A conditional
order was issued under Section 133(1) of the Code directing petitioner to
remove the cowdung pit or to show cause why the order should not be made
absolute. Petitioner filed objection denying the allegations. Sub Divisional
Magistrate inspected the site on 24.5.2008. Thereafter case was posted for
evidence of petitioner on many occasions but, counsel for petitioner submitted
that he had no further evidence to be let in. After hearing counsel on both sides
Sub Divisional Magistrate passed the impugned order.
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3. It is contended in the revision petition that no public nuisance is
involved since the cowdung pit is constructed in the property of the petitioner and
the well is situated in the property of respondent No.1. In the course of
argument learned counsel for petitioner submitted that the final order cannot
stand since no enquiry as contemplated under Section 138 of the Code was
conducted by the Sub Divisional Magistrate. Counsel for respondent No.1 in
response argued that report of the Village Officer and other materials would
show that drinking water in the well is used not only by respondent No.1 but, the
public at large and hence, Section 133(1) of the Code is attracted.
4. In this revision I am not going into the question whether Section
133 (1) of the Code is attracted, in view of the order I am proposing to make. It
is seen that though Section 138 of the Code required the Sub Divisional
Magistrate to record evidence in the matter as in a summons case no such
evidence has been recorded. Report of the Village Officer and the certificate
issued by the Medical Officer, without examining those officials and proving the
same cannot be said to be evidence as contemplated under Section 138 of the
Code. Counsel for petitioner submits that petitioner has evidence to be let in
and is prepared to adduce evidence. Learned counsel for respondent No.1
submits that respondent No.1 also has evidence to be let in. Since no evidence
as stated above has been recorded under Section 138 of the Code I am inclined
to interfere with the order under challenge. Order under challenge is liable to be
set aside and the matter sent back to the Sub Divisional Magistrate to record
evidence under Section 138 of the Code and to dispose of the case afresh as
Crl.R.P.No.137/2009
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provided under law.
Resultantly, this revision petition is allowed. The order challenge is
set aside and the matter is remitted to the Sub Divisional Magistrate for fresh
disposal in the light of the observations made above. Considering the urgency of
the matter, Sub Divisional Magistrate is directed to expedite the proceedings
before him.
Crl.M.A.No.421 of 2009 will stand dismissed.
THOMAS P.JOSEPH,
Judge.
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