IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 2938 of 2006(Y)
1. RAMANI JAYARAM, AGED 61 YEARS,
... Petitioner
Vs
1. SUB DIVISIONAL MAGISTRATE, THRISSUR.
... Respondent
2. AMMINI, W/O.RAGHAVAN,
3. DR.V.K.MOHANAN,
4. RAJESH GEORGE,
For Petitioner :SRI.DINESH MATHEW J.MURICKEN
For Respondent :SRI.G.SREEKUMAR (CHELUR)
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :16/10/2008
O R D E R
THOMAS P. JOSEPH, J.
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W.P.(C) No.2938 of 2006 Y
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Dated this the 16th day of October, 2008.
JUDGMENT
Heard counsel for writ petitioner and the Public Prosecutor. There
is no representation for respondents 2 to 4.
2. Respondents 2 to 4 filed Ext.P1, complaint before the first
respondent seeking action under Section 133 of the Code of Criminal Procedure
(for short, `the Code’). According to them, the pathway being used by them was
obstructed by the writ petitioner. First respondent obtained report of the
Tahsildar concerned and issued Ex.P2, conditional order dated 1.6.2005 calling
upon the petitioner to comply with the said order or to show cause why
conditional order should not be made absolute. Pursuant to Ext.P2, petitioner
appeared before the first respondent and filed counter statement (Ext.P3)
wherein it is inter alia contended that the disputed pathway is private way of the
petitioner. Petitioner states that disregarding the provisions of Section 137(1) of
the Code, first respondent is proceeding to conduct enquiry under Section 138
of the Code and pass orders. Petitioner therefore, seeks a direction to the first
respondent to comply with the provisions of Section 137 (1) of the Code before
going into the enquiry under Section 138 of the Code.
3. I find from Ext.P3 that writ petitioner has raised a contention
that the way in question is her private way. In other words, existence of public
WP(C) No.2938/2006
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right over disputed way has been denied by the petitioner. In that situation,
Section 137 (1) of the Code required the first respondent to conduct enquiry into
the existence of public right. It is only when it is found in such enquiry that there
is no reliable evidence in support of the denial of public right that first respondent
could pass on to the enquiry under Section 138 of the Code. First respondent
has to follow the procedure prescribed under the Code before passing final
orders in the matter.
Writ Petition is therefore, disposed of directing first respondent to conduct
enquiry as provided under Section 137 (1) of the Code before initiating further
action on the matter.
THOMAS P.JOSEPH,
JUDGE.
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