IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 4488 of 2008()
1. M/S.LIFE GROUP DEVELOPERS AND PROMOTERS,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. SHRI.M.A.ANTO, MALIEKKAL HOUSE,
For Petitioner :SRI.VARGHESE C.KURIAKOSE
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :04/12/2008
O R D E R
R.BASANT, J.
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Crl.M.C.No.4488 of 2008
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Dated this the 4th day of December 2008
O R D E R
The petitioner is a partnership firm engaged in land
development and construction of flats. They have undertaken a
project. According to them, they have got clearance from all
authorities to justify commencement and progress of
construction. When the party started undertaking the
construction, on the complaint of a neighbour/some neighbours,
a conditional order under Section 133 Cr.P.C was passed by the
Sub Divisional Magistrate on 01/03/2008. The petitioner
appeared before the Sub Divisional Magistrate in response to the
said conditional order. Proceedings are pending before the Sub
Divisional Magistrate as M.C.No.73/2008. There was an attempt
by the Revenue Divisional Officer by issue of a stop memo
through a Village Officer calling upon the petitioner to stop the
construction. The petitioner came to this court and by Annexure
A8 order dated 01/04/2008 in W.P.C.No.4393/2008, the said
order was set aside. It was observed by the learned Judge in the
order that expeditious steps must be taken to dispose of
M.C.No.73/2008. It is submitted before me that M.C.No.73/2008
Crl.M.C.No.4488/08 2
has not been disposed of by now and the proceedings are still
going on. The learned Public Prosecutor, after taking
instructions from the Sub Divisional Magistrate, submits that it
is expected that final disposal of M.C.No.73/2008 can be done
within a short period of time.
2. The petitioner is aggrieved by Annexure 12 order
issued by the Sub Divisional Magistrate to the Sub Inspector of
Police under which the Sub Inspector of Police was directed “to
stop the illegal construction of flats in the premises mentioned in
the conditional order”.
3. The learned counsel for the petitioner submits that
Annexure 12 order is totally unjustified and is illegal too. The
learned counsel for the petitioner contends that though a
conditional order has been passed under Section 133 Cr.P.C and
proceedings have been initiated, there has been no order passed
under Section 142 Cr.P.C so far and in the absence of an order
under Section 142 Cr.P.C, the Sub Divisional Magistrate is not
justified either himself or through Village Officers or Sub
Inspectors of Police under him to compel the petitioner to stop
construction which the petitioner has already undertaken.
Crl.M.C.No.4488/08 3
4. I find force in the contention of the learned counsel
for the petitioner. To a pointed query by this court as to whether
any order has been passed under Section 142 Cr.P.C after
passing the conditional order under Section 133 Cr.P.C, the
learned Public Prosecutor submits that the order under Section
133 Cr.P.C (a copy of which has been produced as Annexure 9)
must be reckoned and construed as a composite order under
Section 133 Cr.P.C and 142 Cr.P.C. I have gone through the
order. I am afraid, the attempt to justify stoppage of the
contentions pending as M.C.No.73/2008 cannot be supported by
the theory that Annexure 9 order is a composite order both
under Section 133 Cr.P.C and 142 Cr.P.C. A careful reading of
the conditional order which is produced as Annexure 9 clearly
reveals that it is only a conditional order and not a direction
issued under Section 142 Cr.P.C.
5. I am, in these circumstances, satisfied that the
attempt made by the Sub Divisional Magistrate without passing
an order under Section 142 Cr.P.C to achieve the result which
could be achieved under Section 142 Cr.P.C, is not justified.
Annexure 12 order therefore deserves to be set aside. The
learned counsel for the petitioner advances a further contention
Crl.M.C.No.4488/08 4
that the very initiation of proceedings under Section 133 Cr.P.C
is itself not justified. He contends that the petitioner has the
requisite authority from all authorities and departments to
commence and continue the construction and that in these
circumstances proceedings initiated under Section 133 Cr.P.C is
not justified.
6. I must take note of the nature, quality and contours of
the jurisdiction which I am called upon to invoke and exercise.
The conditional order has been passed as early as on 01/03/2008.
Without demur, the parties who have joined issues had taken
part in the proceedings in M.C.No.73/08. At this juncture when
the proceedings in M.C.No.73/08 is about to be brought to
termination, I am satisfied that the question need not be
considered in this proceedings under Section 482 Cr.P.C.
7. However, I take note of the submission of the learned
counsel for the petitioner that there is urgent necessity to
dispose of M.C.No.73/08 expeditiously. There shall be a
direction to the Sub Divisional Magistrate, Thrissur that final
orders in M.C.No.73/08 must be passed by the Sub Divisional
Magistrate as expeditiously as possible, at any rate, before
31/12/2008. The case shall be posted day to day if that be
Crl.M.C.No.4488/08 5
necessary to comply with the directions by 31/12/2008.
8. In the result,
a) This Crl.M.C is allowed.
b) Annexure 12 order is set aside.
c) The Sub Divisional Magistrate is directed to ensure
that M.C.No.73/08 is disposed of as expeditiously as possible, at
any rate, by 31/12/2008. If necessary, the Sub Divisional
Magistrate shall ensure that the case is posted day to day to
achieve the said result.
9. I may hasten to observe that this order will not stand
in the way of the parties requesting the learned Magistrate to
pass any order under Section 142 Cr.P.C till the matter is
disposed of by 31/12/2008. Appropriate orders on merits after
giving the petitioner an opportunity to raise his objections shall
be passed by the Sub Divisional Magistrate on such application,
if any, under Section 142 Cr.P.C .
Hand over copy of this order to the learned Public
Prosecutor.
(R.BASANT, JUDGE)
jsr
// True Copy// PA to Judge
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Crl.M.C.No.4488/08 7
R.BASANT, J.
CRL.M.C.No. of 2008
ORDER
09/07/2008