IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 19175 of 2006(G)
1. K.G. THILAKAN, S/O. GOPALAN,
... Petitioner
Vs
1. THE TAHSILDAR, MUKUNDAPURAM.
... Respondent
2. RAMESAN, S/O. NEELAKANDAN,
For Petitioner :SRI.RAJESH CHAKYAT
For Respondent :SRI.DEVAN RAMACHANDRAN
The Hon'ble MR. Justice R.BASANT
Dated :05/03/2007
O R D E R
R. BASANT, J.
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W.P.(C) NO.19175 OF 2006
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Dated this the 5th day of March, 2007
JUDGMENT
The petitioner has come to this Court aggrieved by
Ext.P3 order. The Executive Magistrate had passed a
conditional order under Sec.133 of the Cr.P.C. directing the
petitioner to remove the obstruction to a pathway or show
cause. On receipt of that order, a copy of which is produced
as Ext.P3, the petitioner along with his counsel appeared
before the Executive Magistrate. Ext.P2 objection/counter
was filed by the petitioner denying the existence of the public
right in respect of the pathway. Thereupon, Ext.P3 order has
been passed by the Executive Magistrate, in which it is stated
that in as much as the vakkalat filed by the counsel for the
petitioner does not bear the requisite stamps, the objection
filed is rejected.
2. To say the least, the procedure adopted is not
correct. If proper stamps have not been affixed in the
vakkalat filed, the counsel will not be able to appear and plead
on behalf of the petitioner. But the objections filed by the
W.P.(C) NO.19175 OF 2006 -: 2 :-
petitioner cannot obviously be rejected on that ground.
3. In the result, Ext.P3 order is set aside. The objections
filed by the petitioner shall be considered by the Executive
Magistrate. The petitioner shall be questioned under Section
136 Cr.P.C on the next date of posting. Thereafter, if necessary,
the requisite enquiry under Section 137 Cr.P.C shall be
conducted and an appropriate order passed under Section 137(2)
Cr.P.C. Depending on such order that may be passed under
Section 137(2) Cr.P.C., if necessary the Executive Magistrate
shall proceed to conduct a further enquiry under Section 138
Cr.P.C and pass appropriate final orders.
4. The petitioner shall be entitled certainly to file a
proper vakkalatnama in the prescribed form to engage a counsel
to appear for him. This Writ Petition is, in these circumstances,
allowed. Ext.P3 order is set aside. The Executive Magistrate is
directed to continue with the proceedings in accordance with the
above directions. Needless to say, the Executive Magistrate
shall proceed to dispose of the matter as expeditiously as
possible – at any rate, within a period of 3 months from the date
on which a copy of this order is placed before the learned
Executive Magistrate.
5. Hand over copies of this Judgment to both counsel.
Sd/-
rtr/ //true copy// (R. BASANT, JUDGE)
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