IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 670 of 2005(C)
1. SHANMUGHAN, HOUSE NO.10/83,
... Petitioner
2. M.K.LALITHA, W/O.SHANMUGHAN,
Vs
1. KARAYAKATH PRABHAKARAN,
... Respondent
2. KARAYAKATH SUSEELA,
3. T.V.NABDULLA, HOUSE NO.10/51,
4. STATE OF KERALA, REP. BY
For Petitioner :SRI.P.V.KUNHIKRISHNAN
For Respondent :SRI.E.NARAYANAN
The Hon'ble MR. Justice V.RAMKUMAR
Dated :02/06/2008
O R D E R
V. RAMKUMAR, J.
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Crl.R.P.No.670 of 2005
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Dated this the 2nd day of June, 2008
ORDER
Heard both sides.
2. The revision petitioners challenge the order dated
20.1.08 passed by the Sub Divisional Magistrate, Kozhikode
peremptorily restraining the revision petitioners from reducing
the width of the pathway from eight feet. The said order is
purported to be a final order presumably issued under Section
138 Cr.P.C.
3. I perused the lower court records.
4. On 6.03.04, respondent Nos. 1 to 3 herein filed a
petition before the Revenue Divisional Officer, Kozhikode
contenting, inter alia, as follows:-
The counter petitioners who are the new owners of the
nearby residential building bearing No.10/1983 have attempted
to reduce the width of the pathway used by the petitioners and
others by constructing a compound wall along the pathway. The
said pathway is the only access for ingress and egress to the
Crl.R.P.No.670 of 2005
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petitioners and others. Hence appropriate orders may be passed
to restore the pathway to its original condition.
5. On the said application, the Revenue Divisional Officer,
Kozhikode passed an order on 16.3.04 as follows:-
” Village Officer, Cheruvannur shall inspect the
site at once and furnish details but the counter
petitioners may be permitted to maintain status quo till
the disposal of the case.”
6. Thereafter the revision petitioners, on coming to know
of the above order, appeared before the Sub Divisional
Magistrate. The Magistrate did not conduct any enquiry as
contemplated under Section 137(3) Cr.P.C but passed the
impugned order directing the revision petitioners as above.
7. Under Section 133 Cr.P.C if there is any unlawful
obstruction on any public place or way is reported, the Sub
Divisional Magistrate has to pass a conditional order directing
the counter petitioners either to remove the obstruction or if he
objects to do so, to appear before the Sub Divisional Magistrate
or any Executive Magistrate sub-ordinate to him at the time and
Crl.R.P.No.670 of 2005
3
place to be fixed by the order and show cause why the
conditional order should not be made absolute. A perusal of the
files reveals that no such conditional order was passed by the
Sub Divisional Magistrate. He did not also call upon the counter
petitioners allegedly causing the unlawful obstruction to the
pathway to remove such obstruction and if the counter
petitioners object to do so, to appear before the Sub Divisional
Magistrate or before the Executive Magistrate subordinate to
him at a time at and place to be fixed.
8. It is only if a conditional order is made under sub-
section 133 Cr.P.C. for the purpose of preventing the alleged
obstruction in the use of the way, and the person against whom
the conditional order is made is given an opportunity to deny the
existence of any public right in respect of the way, that the
Magistrate can proceed further to conduct an enquiry under
Section 137(3) Cr.P.C., in case the opposite party denies the
existence of any public right in respect of the way in question.
Without passing a conditional order under Section 133 Cr.P.C.,
the Magistrate could not have straightaway proceeded to pass a
final order under Section 138 Cr.P.C. and that too without taking
Crl.R.P.No.670 of 2005
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evidence of the parties. The interim order passed by the Sub
Divisional Magistrate on 16.3.2004, as extracted above, is not in
confirmity with the provisions of the statute. Hence, the final
order also cannot be sustained, and is accordingly, set aside and
the matter is remitted to the Sub Divisional Magistrate to
proceed, in accordance with law. The Magistrate can pass a
final order under Section 138 Cr.P.C. only after passing a
conditional order under Section 133 Cr.P.C. In case the
Magistrate finds a good ground to proceed against the opposite
party, he shall pass a conditional order under Section 133
Cr.P.C. and then proceed to dispose of the case, in accordance
with law.
Status quo as on today shall be maintained by both sides,
until the Magistrate passes a final order under Section 138
Cr.P.C. or the Magistrate passes any injunction pending enquiry
under Section 142 Cr.P.C.
V. RAMKUMAR, JUDGE
sj