IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 4024 of 2008(C)
1. M.A.SALAM, AGED 54 YEARS,
... Petitioner
Vs
1. KUNJAN, S/O.CHAMI, THANDANARA,
... Respondent
2. VIJAYAN, S/O.MURUKAN,
3. STATE OF KERALA REPRESENTED BY PUBLIC
For Petitioner :SRI.V.M.KRISHNAKUMAR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :20/01/2009
O R D E R
M. SASIDHARAN NAMBIAR,J.
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CRL.R.P.NO.4024 OF 2008
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Dated this the 20th day of January, 2009
O R D E R
Revision petitioner is challenging the order passed by the
Sub Divisional Magistrate, Palakkad dropping proceedings under
section 133 of Code of Criminal Procedure based on a petition filed by
the revision petitioner to cause removal of the obstruction made by
first respondent across the road alleging that it was being used for
ingress and egress by the inhabitants of One Lakh House Colony. The
Sub Divisional Magistrate, Palakkad as per order dated 5.12.2006
directed first respondent to remove the obstruction within seven days.
That order was challenged before this Court in Crl.R.P.4440 of 2006.
As per order dated 7.3.2007 this Court set aside the order and
directed Sub Divisional Magistrate to reconsider the matter affording
opportunity to both sides to adduce evidence. The impugned order
was passed thereafter. As per the order, learned Magistrate dropped
the proceedings holding that the right claimed by the revision
petitioner is a right of easement as is clear from Ext.D10 and as no
public right is involved, proceedings under section 133 can only be
dropped. The order is challenged in this revision petition filed under
section 397 and 401 of Code of Criminal Procedure.
2. Learned counsel appearing for revision petitioner was
heard.
CRRP 4024/2008
2
3. The argument of the learned counsel is that the
inhabitants of One Lakh House Colony have a right of way in the
property and first respondent is not entitled to cause obstruction and
learned Magistrate should have proceeded under section 145 and
directed removal of the obstruction caused by first respondent and
should have found that an order is to be passed under section 145 of
Code of Criminal Procedure.
4. On hearing the learned counsel and going through the
impugned order passed by the Sub Divisional Magistrate, I find no
reason to interfere with the order. As rightly found by the Sub
Divisional Magistrate revision petitioner and inhabitants of One Lakh
House Colony is claiming right of a way. The said right is claimed
not on the basis that it is a public way, but a right of easement.
Therefore proceedings under section 133 will not lie. Though learned
counsel argued that proceedings should have been under section 145
of Code of Criminal Procedure for the reason that a breach of peace
exists, in respect of the right to use the way, so long as there is no
dispute with regard to possession, proceedings under section 145
cannot be initiated. In such circumstances revision is dismissed.
M. SASIDHARAN NAMBIAR, JUDGE
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