CRL.M.C.No.2614 of 2019

# IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 4[TH] DAY OF JANUARY 2022 / 14TH POUSHA, 1943 CRL.MC NO. 2614 OF 2019 [AGAINST THE ORDER DATED 15.2.2018 IN CRL.RP NO.15/2016 OF THE ADDITIONAL DISTRICT AND SESSIONS JUDGE-II, KALPETTA, WAYANAD WHICH AROSE OUT OF THE ORDER IN M.C.NO.37/2016 OF THE SUB DIVISIONAL MAGISTRATE, MANANTHAVADY] ## PETITIONERS/REVISION PETITIONERS/RESPONDENTS: 1 C.U.IYPE, AGED 83 YEARS S/O. UTHUP, CHOLAYIL VEEDU, AVAYAL, KRISHNAGIRI AMSOM DESOM, KOLAGAPPARA POST, SULTHANBATHERY TALUK, WAYANAD DISTRICT. 2 ANNAMMA, AGED 78 YEARS W/O. IYPE, CHOLAYIL VEEDU, AVAYAL, KRISHNAGIRI AMSOM DESOM, KOLAGAPPARA POST, SULTHANBATHERY TALUK, WAYANAD DISTRICT. BY ADVS. JACOB SEBASTIAN SRI.K.V.WINSTON SMT.ANU JACOB ## RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE: 1 KURYACHAN, AGED 43 YEARS S/O. KURUVILA, NEDUNGOTTUKUDIYIL VEEDU, RESIDING AT AVAYAL, KRISHNAGIRI AMSOM DESOM, KOLAGAPPARA POST, SULTHANBATHERY TALUK, WAYANAD DISTRICT, PIN 673 591 2 SREEDHARAN, S/O. KESAVAN, KUSHIVAYAL HOUSE, AVAYAL, KOLAGAPPARA POT, SULTHANBATHERY TALUK, WAYANAD DISTRICT, PIN 673 591 3 STATE OF KERALA, Crl.M.C.No.2614 of 2019 2 REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, HIGH COURT ROAD, ERNAKULAM 682 031. BY ADVS. FOR R1 AND R2 BY SRI.RINNY STEPHEN CHAMAPARAMPIL SMT.ASHA ELIZABETH MATHEW R3 BY ADV. SUDHEER GOPALAKRISHNAN, PUBLIC PROSECUTOR. THIS CRIMINAL MISC. CASE HAVING BEING FINALLY HEARD ON 02.12.2021, THE COURT ON 4.1.2022 PASSED THE FOLLOWING: Crl.M.C.No.2614 of 2019 3 ## O R D E R The petitioners are the respondents in M.C.No.37/2016 on the file of the Sub Divisional Magistrate, Mananthavady which is a proceeding initiated under Section 133 of the Code of Criminal Procedure(Cr.PC). This Crl.MC is filed challenging all further proceedings in the above M.C, on the ground that the same is not legally sustainable in view of the fact that, in connection with the subject matter of the dispute, litigations are pending before a competent civil court and interim order passed by the civil court, is also in force. 2. The facts leading to this Crl.MC are as follows: Respondents 1 and 2 are claiming existence of a public pathway through the property of the petitioners. The 1[st] petitioner herein has filed O.S.No.412/2015 before the Munsiff Court, Sulthanbathery praying for a permanent prohibitory Crl.M.C.No.2614 of 2019 4 injunction against the 1[st] respondent and some others, restraining them from trespassing into the property and from attempting to create a pathway through the petitioner’s property. The 2[nd] petitioner filed O.S.No.553/2015 before the Munsiff Court, Sulthanbathery seeking a similar relief as against her property. The 1[st] respondent herein filed O.S.No.378/2016 in the very same court against the son of the petitioners herein seeking for a mandatory injunction and to remove the obstructions caused in the said pathway. O.S.No.356/2016 was also filed by some persons claiming existence of the public pathway through the property of the petitioners herein and they sought for a mandatory injunction against the petitioners. 3. The Munsiff Court as per the common order dated 23.3.2016 in I.A.No.908/2015 and I.A.No.1732/2015 in O.S.No.412/2015, I.A.No.1561/2015 and I.A.No.1730/2015 in O.S.No.553/2015 directed all the parties to the suit and counter claims, to maintain status quo as shown in the report of the Crl.M.C.No.2614 of 2019 5 Advocate Commissioner, till the disposal of the suits and counter claims. Annexure-A4 is the said order. In O.S.No.356/2016 filed against the petitioners also, a similar order of status quo was passed by the Munsiff Court as evidenced by Annexure-5. It is also discernible from the records that initially, an ex parte injunction was passed in favour of the petitioners herein restraining the respondents in the suit including the 1[st] respondent herein from interfering with the peaceful possession of the petitioners over the property and from creating any pathway through their property. Later, after the appearance of the respondents/defendants therein, a considered order was passed taking into account the objections submitted by the respondents therein and the injunction was vacated by issuance of an order of status quo as mentioned above. 4. While the matter stood so, the respondents 1 and 2 herein filed an application before the Sub Divisional Magistrate, Mananthavady contending that the petitioners herein are causing obstructions to Crl.M.C.No.2614 of 2019 6 the public pathway and the powers of the Sub Divisional Magistrate under Section 133 of the Code of Criminal Procedure (Cr.PC) were sought to be invoked. In the said M.C., Annexure-A1 preliminary order was passed by the Sub Divisional Magistrate directing the petitioners herein to remove the blockades on the said pathway in survey No.203/1 immediately and not to obstruct the movement of anyone along the said pathway from the date of receipt of the order. Subsequently, upon appearance of the petitioners herein, the Sub Divisional Magistrate confirmed Annexure-A1 order by issuing a final order in this regard. The aforesaid final order was challenged by the petitioners herein before the Additional District and Sessions CourtII, Kalpetta in Crl.R.P.No.15/2016. The aforesaid Revision Petition was disposed of by the Additional Sessions Court as per Annexure-A3 order dated 15.2.2018 wherein the final order passed by the Sub Divisional Magistrate was set aside. The said order was passed mainly on the reason that the final order Crl.M.C.No.2614 of 2019 7 was passed by the Sub Divisional Magistrate without taking evidence in the matter and by merely acting upon the reports of the Village Officer in this regard. Accordingly, the Sub Divisional Magistrate was directed to consider the matter afresh, after recording the evidence of either parties, in accordance with law. On the basis of the same, the matter was remanded back to the Sub Divisional Magistrate and the process of recording of evidence were in progress. At that juncture, this Crl.M.C. was filed by the petitioners herein, seeking to quash all further proceedings before the Sub Divisional Magistrate on the ground that, the Sub Divisional Magistrate does not have the jurisdiction to proceed with the said M.C.No.37/2016 as the matter is pending before the civil court. 5. Heard Sri. Jacob Sebastian, the learned counsel for the petitioners, Smt. Rinny Stephen Chamaparambil, the learned counsel for the 1[st] and 2[nd] respondents and Sri. Sudheer Gopalakrishnan, the learned Public Prosecutor for the 3[rd] respondent. Crl.M.C.No.2614 of 2019 8 6. The short question that arises herein is as to whether the Sub Divisional Magistrate is empowered to continue the proceedings initiated by him under Section 133 of the Cr.PC, when the said dispute is pending before a civil court. There is no dispute raised by the parties herein that the pathway which is the subject matter of the dispute herein is the same property that is the subject matter of the civil suit as well. 7. The learned counsel for the petitioners contends that, as the matter is now pending before the civil court and there is an order of status quo passed by the civil court in respect of the matter, the Sub Divisional Magistrate is not empowered to conduct any inquiry as contemplated under Section 133 of the Cr.PC. The learned counsel for the petitioner relies on the judgments in Sojan Jose and Another v. Sub Divisional Magistrate, Painavu, Idukki & Ors. [2013(1)KHC 831] and Jose V. Tharayil vs. Revenue Divisional Officer, Fort Kochi and Another [2010(2)KHC 217]. Crl.M.C.No.2614 of 2019 9 8. The aforesaid contentions are seriously opposed by the learned counsel for the 1[st] and 2[nd] respondents. According to him, the pendency of a civil case will not preclude the Sub Divisional Magistrate from proceeding with the inquiry even if the subject matter is the same. It is pointed out that, in a proceeding under Section 133 of the Cr.PC what is relevant is as to whether, there exists any public pathway or not and there is any obstruction to that public way. He places reliance upon in Jibu Simon v. Meenakshi Amma [2000(1)KLT 190] and Rakesh Kumar v. State of UP and Another [1994 CriLJ 289]. 9. Annexure-A4 is the order passed by the Munsiff Court, Sulthan Bathery wherein the question of necessity to grant injunction to the petitioners herein and also to the other respondents who are claiming right over the pathway through the property of the petitioners, were considered. A perusal of the aforesaid order would indicate that, initially an order of injunction was granted in favour of the petitioners herein, but later, after hearing the Crl.M.C.No.2614 of 2019 10 respondents herein, the same was vacated. This is particularly because, the report submitted by the Advocate Commissioner indicates that there was an obstruction to the said pathway. At the same time, it was also observed that, if the respondents are trespassing into the property of the petitioners, it would cause irreparable injury to them. In such circumstances, it was directed that, an order of status quo to be maintained by either parties. It is a crucial aspect that, only the 1[st] respondent herein is a party to the aforesaid civil suit and the 2[nd] respondent herein is not a party to the said civil suit. 10. The procedure to be followed under Section 133 of the Cr.PC was considered by this Court elaborately, in the case of Jose V. Tharayil (supra). In the said judgment, it was held that, once it is brought to the notice of the Sub Divisional Magistrate by the petitioners that a public way has been obstructed and upon being prima facie convinced as to the existence of public ## Crl.M.C.No.2614 of 2019 11 pathway and the obstruction thereon, a preliminary order shall be issued to the respondents therein who are obstructing the public way. The persons against whom such an order is passed, shall also be allowed to submit their objections. While considering the said objections, if the respondents therein were able to show that there are reliable evidence in support of the denial of such right, the Sub Divisional Magistrate has to stay the proceedings and the parties shall be relegated to the civil court. 11. In Jibu Simon’s case (supra), this Court categorically held that pendency of the suit is not a bar for exercising the jurisdiction under Section 133 of the Cr.PC, but any considered order passed by the civil court will be binding on the parties and must be adhered to. The very same view is taken in Qamar Jahan and Others v. State of UP[1997 CriLJ 3810] also. 12. In the case of Sojan Jose’s case (supra), this Court considered the applicability of an order Crl.M.C.No.2614 of 2019 12 passed by the civil court upon the proceedings under Section 133 of the Cr.PC and it was observed as follows: _“3. An ex parte decree has been passed in the suit filed by the predecessor of petitioners, in which they got impleaded as additional plaintiffs, is the submission of the counsel for petitioners. Per contra, learned counsel appearing for the third respondent would submit that he was not a party in that suit and another suit filed under S.91 of CPC as against the present petitioners is still pending with respect to the disputes, over the obstruction caused in the way claimed by the public as of right. If there is any prohibitory order, whether interim or final passed by the Civil Court in respect of the subject – matter covered by the proceedings under S.133 of the Code, then the Sub Divisional Magistrate has to honour and respect that order. What is conferred under S.133 is a preventive jurisdiction over disputes which are of civil nature, over which the final adjudicating authority is the Civil Court. So much so, the Sub Divisional Magistrate is bound to respect the orders passed by the Civil Court. With respect to the stay of the proceedings canvassed by the petitioners contending that Civil Court is already seized of matter and prohibitory orders are imposed, the learned Sub Divisional Magistrate, after looking to the materials and hearing the parties shall pass appropriate orders expeditiously. Subject to the above direction, the petition is disposed of.”_ 13. From all the aforesaid judgments, it is evident that, what is contemplated in Section 133 of the Cr.PC, is a preventive jurisdiction over a dispute which is basically civil in nature. The purpose of the said jurisdiction is to ensure that Crl.M.C.No.2614 of 2019 13 no public pathway is obstructed by any person, without any reasonable or legally justifiable claim. The procedure of inquiry contemplated under Section 133 of the Cr.PC is a summary enquiry. It is also discernible that when there are reasonable and justifiable grounds for denying such right by the said party, such rights have to be decided by a competent civil court as the question of title and rights of the parties can be decided only through the mechanism provided in civil proceedings. This is particularly because, the rights and liabilities in respect of a pathway is basically civil in nature. However, even for arriving at that stage, ie. to find out as to whether the obstruction, if any, caused by the petitioners are on the basis of any reasonable or legally justifiable reason, an inquiry has to be conducted. While making such an inquiry, the order passed by the Civil Court, particularly when it is an order passed after hearing both sides, will be very much material and decisive. In other words, such an order passed by ## Crl.M.C.No.2614 of 2019 14 the Civil Court, will be crucial for determining the bonafides on the part the persons resisting the proceedings under section 133 Cr P.C. 14. In such circumstances, in the light of the well settled principles of law, it cannot be concluded that, the proceedings in M.C.No.37/2016 pending before the Sub Divisional Magistrate, Mananthavady is per se illegal warranting invocation of powers of this Court under Section 482 of the Cr.PC. Proper course that should be adopted is to enable the Sub Divisional Magistrate to conduct an inquiry as contemplated under the relevant provisions of Cr.P.C and upon examining the materials produced by both sides, a finding has to be arrived at, as to whether the petitioners herein are justified in denying the right of way. If upon examination of the said documents, if it is found that there are justifiable reasons in support of such denial on the part of the petitioners, the parties have to be relegated to the decision of a civil court. Similarly, as held by this Court in Crl.M.C.No.2614 of 2019 15 Sojan Jose and Jibu Simon’s cases (supra), a considered order passed by the civil court irrespective of the question whether it is interim or final order, it shall be binding upon the Sub Divisional Magistrate. 15. In this case, it is evident that, the civil suit is pending before a competent court and there are orders of status quo. It is for the Sub Divisional Magistrate to consider all the relevant aspects including the interim orders passed by the civil court while considering the question of necessity to proceed with the inquiry. Upon examination of such documents, it shall be open for the Sub Divisional Magistrate to take a decision as to whether the proceedings are to be stayed, so as to complete the adjudication of the rights between the parties by the civil court. As far as this Crl.M.C. is concerned, the prayer sought for is to quash the proceedings in the aforesaid M.C.No.37/2016, as the civil case is pending before a competent court. Since I have already found that, Crl.M.C.No.2614 of 2019 16 the civil proceeding as such is not a bar, the said prayer cannot be entertained. In such circumstances, I dispose of this Crl M.C, directing the Sub Divisional Magistrate, Manathavady, to take appropriate decision in M.C.37/2016 in accordance with law after conducting an inquiry in this regard, subject to the above observations. Sd/- ZIYAD RAHMAN A.A. JUDGE ## pkk Crl.M.C.No.2614 of 2019 17 ## APPENDIX OF CRL.MC 2614/2019 PETITIONER’S ANNEXURES: ANNEXURE A1 A TRUE COPY OF THE ORDER PASSED BY THE SUB DIVISIONAL MAGISTRATE, MANANTHAVADY UNDER SECTION 133 CRPC ANNEXURE A2 A TRUE COPY OF THE OBJECTIONS SUBMITTED BY THE PETITIONERS IN MC NO. 37/2016 OF THE SUB DIVISIONAL MAGISTRATE, MANANTHAVADY ANNEXURE A3 A TRUE COPY OF THE ORDER DATED FEBRUARY 15,2018 IN CRL.R.P NO. 15/2016 OF THE ADDITIONAL DISTRICT AND SESSIONS JUDGE-II, KALPETTA, WAYANAD. ANNEXURE A4 A TRUE COPY OF THE COMMON ORDER DATED MARCH 23, 2016 IN IA NO. 908/2015 AND I.A NO. 1732/2015 IN OS 412/2015, I.A NO. 1561/2015 AND I.A NO. 1730/2015 IN OS 553/2015, THE COURT OF THE MUNSIFF MAGISTRATE SULTANBATHERY. ANNEXURE A5 A TRUE COPY OF THE ORDER DATED AUGUST 23,2016 IN I.A NO. 870/2016 IN OS 356/2016, THE COURT OF THE MUNSIFF MAGISTRATE SULTANBATHERY.