CRL.R.P. Nos. 703/2016 & 870/2016 and CoC No. 725/2016 (V. Sajeev v. State of Kerala & Others)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **FRIDAY, THE 9TH DAY OF SEPTEMBER 2016/18TH BHADRA, 1938** **Crl.Rev.Pet.No. 870 of 2016 () -------------------------------** **AGAINST THE ORDER/JUDGMENT IN MC 1224/2016 of SUB.DVL.MAGISTRATE,KOLLAM** ## **REVISION PETITIONER(S)/PETITIONER:** **---------------------------------** **V.SAJEEV, GURUKRIPA, PERUMPUZHA.P.O., KOLLAM DISTRICT.** **BY ADVS.SRI.K.JAYAKUMAR (SR.) SRI.THOUFEEK AHAMED** ## **RESPONDENT(S)/STATE & RESPONDENTS:** **----------------------------------** ## **1. STATE OF KERALA,** - **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.682 031.** ## **2. SASIDHARAN V,** - **S/O.VASAVAN, HOUSE NO.186, SASTHRI NAGAR, KOLLAM DISTRICT.691 001.** **3. S.P.PRINCE,** **SREENIKETHAN, KARIMBINPUZHA.P.O., PULLOOR, KOLLAM DISTRICT-679 513.** ## **4. SUB DIVISIONAL MAGISTRATE** - **KOLLAM.691 001.** **R2 BY ADV. SRI.G.S.REGHUNATH R BY PUBLIC PROSECUTOR SRI.C.K.SURESH** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05-09-2016, ALONG WITH COC NO.725/2016 & ANOTHER THE COURT ON 9/9/2016 PASSED THE FOLLOWING:** ## **CRL.RP.NO.870/2016** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE-A: COPY OF THE REQUEST OF THE 3RD RESPONDENT DATED 12/10/2014 O THE STATE COMMITTEE.** **ANNEXURE-B: COPY OF THE LETTER DATED 10/11/2014 ISSUED BY STATE COMMITTEE OF SREE NARAYANA SASMSKARIKA SAMITHI TO THE 3RD RESPONDENT AND ANOTHER.** **ANNEXURE-C: COPY OF LETTER ISSUED BY THE STATE COMMITTEE TO THE RETURNING OFFICER DATED 10/11/2014.** **ANNEXURE D: COPY OF THE ELECTION NOTIFICATION DATED 12/11/2014** **ANNEXURE-E: COPY OF THE PROCEEDING OF THE RETURNING OFFICER DATED 12/12/2014.** **ANNEXURE F: COPY OF THE ELECTION NOTIFICATION DATED 17/11/2014 ISSUED BY THE 3RD RESPONDENT.** **ANNEXURE G: COPY OF PROCEEDINGS DATED 7/12/2014 ISSUED BY THE RETURNING OFFICER APPOINTED BY THE 3RD RESPONDENT.** **ANNEXURE-H: COPY OF THE COMPLAINT DATED 10/12/2014 FILED BY THE 3RD RESPONDENT BEFORE THE 4TH RESPONDENT.** **ANNEXURE-I: COPY OF ORDERR DATED 20/12/2014 ISSUED BY THIS HON'BLE COURT IN WPC NO.35198/2014** **ANNEXURE-J COPY OF ORDER NO. M.24608/2014 DATED 26/12/2014 OF THE 4TH RESPONDENT.** **ANNEXURE K: COPY OF ORDER OF THE PRINCIPAL MUNSIFF COURT, THIRUVANANTHAPURAM DATED 1/9/2006 IN IA NO.251/2006 IN OS NO.29/06.** **ANNEXURE L: COPY OF THE ORDER DATED 6/11/2014 IN IA NO. 8968/2014 IN OS NO.29/06 OF THE PRINCIPLA MUNSIFF COURT, THIRUVANANTHAPURAM.** **ANNEXURE-M: COPY OF THE ARGUMENT NOTE FILED BY REVISION PETITIONER BEFORE THE 4TH RESPONDENT IN M 24608/14** **ANNEXURE - N: COPY OF THE PROCEEDINGS DATED 30/11/2014 ISSUED TO THE 2ND RESPONDENT.** **ANNEXURE -O: COPY OF THE PROCEEDINGS DATED 30/11/2014 ISSUED TO THE 3RD RESPONDENT.** **ANNEXURE - P: COPY OF THE ORDER DATED 26/2/2016 IN IA NO.3554/15 IN OS NO.698/2015 OF THE ADDL. MUNSIFF COURT, KOLLAM.** ## **RESPONDENTS EXHIBITS NIL** **/TRUE COPY/ PS TO JUDGE.** ## **SUNIL THOMAS, J.** - - - - - - - - - - - - - - - - - - ## **Crl.R.P.Nos. 703 & 870 of 2016 & C.O.C.No.725 of 2016** - - - - - - - - - - - - - - - - - - Dated this the 9[th] day of September, 2016 ## **O R D E R** Crl.R.P.No.703 of 2016 and C.O.C.No.725 of 2016 are filed by B party No.1 in a proceeding before the SDM Kollam. Crl.R.P.No.870/2016 is filed by “A party” in the same proceeding before the SDM, Kollam. Both Revision petitioners challenge the order of the Sub Divisional Magistrate, Kollam, dated 20/5/2016 in MC No.1224 of 2016 (M). 2. The dispute related to the election to the Kollam District committee of Sreenarayana Samskarika Samithi (hereinafter referred to as the Samithi). Since there was a scramble for power by two separate groups of the above Samithi regarding the election to the committee, as well as regarding the right to manage a school run under the committee, the matter was taken cognizance by the SDM by proceeding No. M.No.24608/2014. After a detailed consideration of the entire issues involved therein, an order CRL.R.P.Nos.703/2016 & others 2 was passed by the SDM dated 27/5/2015 which was challenged by B party, in Cr.R.P.No.696/2015. After hearing both sides, this court by order dated 13/1/2016 allowed the Crl.R.P. and set aside the impugned order of the SDM on a finding that there were rival claimants for the running of the school. It was held that a civil suit was pending wherein the right to run the school and some of the disputes covered by the matter pending before the SDM were directly under consideration. It was held that the SDM, by the impugned order, exceeded the jurisdictional limit and adjudicated the disputed questions of fact, which the authority was not called upon to answer. It was also found that the SDM thereby transgressed into the jurisdiction of the civil court. Consequently, the impugned order was set aside and the matter was remitted to the SDM for fresh consideration with following specific directions. a). The persons who were divested of the management should stood restored forthwith to the position as on the date of the impugned order. b). The parties were directed to maintain status quo as on the date of the order of the SDM dated 27/5/2015. c). The SDM was directed to consider the entire issues CRL.R.P.Nos.703/2016 & others 3 afresh within a period of two months from the date of receipt of the order. d). Since the Civil Court had already taken cognizance of the disputed issue, any order passed by the civil court touching upon the right of management of the school had to prevail. e). The present incumbent in the management of the school shall hold the office without taking any new policy decision or entering into major financial commitments other than those essential for the day to day administration of the school. f). Directions regarding the running of the school and allied matters may be sought from the civil court. 3. Pursuant to the remand, parties are stated to have appeared before the court on 27/2/2016. In the meanwhile, the new SDM had taken charge. Thereafter, the case was posted on few dates and ultimately to 24/5/2016. In the meanwhile, the above contempt case was filed before this Court by B party No.1 alleging that the refusal to dispose of the case within the stipulated time, in spite of repeatedly bringing to the notice of the SDM, amounts to contempt of court. It was alleged that, the SDM was proceeding with the CRL.R.P.Nos.703/2016 & others 4 mater and adjourning it without passing a final order on it. It was further alleged that no extension was also not sought by the SDM, which also amounted to per se contempt. 4. The notice in the contempt case was served on SDM on 23/5/2016. In the meanwhile, the present impugned order was passed. According to the petitioner in the contempt case, the above order was in fact passed on 23/5/2016 pre dated as 20/5/2016. The order is under challenge in both revisions. 5. Heard the learned senior counsel for A party and the learned counsel for B party and also the learned public prosecutor. 6. Both the counsel for A party and B party contended that the impugned order is not legally sustainable and that it was not in compliance with the direction of this Court in Crl.R.P.No.696/2015. 7. The records which were called for, eminently shows that the case was posted to 24/5/2016. It is clear that notice of contempt petition was served on 23/5/2016. It is surprising as to how in a case, which stood posted to 24/5/2016, an order can be passed on 20/5/2016. If at all such a order is passed, it was without preponing the case and even without giving CRL.R.P.Nos.703/2016 & others 5 notice to both sides. This Court's direction was in relation to the proceedings of the SDM in M.24608/2014. None of the directions contained in Crl.R.P.No.696/2015 of this Court was complied with .The impugned order of the SDM in that case was set aside and the SDM was directed to consider the same matter afresh on the basis of the materials on record. Logically, it should have been an order passed on the file in relation to the issues arising in that matter. However, the present order is seen passed in MC No.1224/2016. Evidently, it was passed on a police report dated 27/4/2016 in relation to a complaint lodged on 4/4/2016. It is clear that the order in MC-1224/2016, though purported to be passed in compliance with the order in Crl.R.P.No.696/2015, was in fact passed on a totally new cause of action. It is clear that the order was passed consciously by the SDM. The title of the above order itself shows that the order was pursuant to the direction of this Court in Cr.R.P. No.696/2015. Hence, there is no order in MC- 24608/2014 which the SDM was directed to consider afresh on the materials on that file. By passing another order in a totally different matter and purporting to claim that it was in compliance with the direction of this Court in Crl.R.P.No.696/2015 is prima facie contumacious and CRL.R.P.Nos.703/2016 & others 6 consciously intended to overrech this court's direction. Virtually, in terms of that, the learned SDM has not complied with the directions contained in Crl.R.P.No.696/2015 and tried to mislead this court. Such a conduct is thoroughly unexpected from an officer of this position and is a matter which prima facie amounts to contempt of court. It is also pertinent to note that the SDM had not sought for an extension of time for disposal of the case also. 8. The learned counsel for the B Party, pursuing the contempt of court proceeding, contended that argument note which was submitted before the court below was not even referred to by the SDM, which amounts to judicial dishonesty. Relying on **Shri.Baradakanta Mishra v. Shri Bhimsen Dixit (1973 KHC 465)** it was contended that the order passed by the court is prima facie contumacious and is liable to proceeded against .Such a conduct from a superior officer is liable to be sternly dealt with . 9. Pending the proceedings, the SDM has filed an affidavit dated 3[rd] August 2016 wherein he has expressed unconditional apology for not complying with the time limit stipulated by this Court. He had stated that due to administrative reasons, he could not comply with the order of CRL.R.P.Nos.703/2016 & others 7 this Court. Though it is possible that the SDM, who is an officer vested with several functions , due to several pre occupations, may not be in a position to comply with the time bound directions, However, that will not absolve him of the duty cast on him to seek extension of time if he feels that the direction cannot be complied within the time frame fixed by this Court. However, the affidavit clearly shows that even now he has not tendered his apology for not passing the order as directed by this Court and passing a different order on a totally different facts, purported to be in compliance of the direction of this court. However, having regard to the unconditional apology expressed by him and on a belief that the officer will not repeat such contumacious conduct again, I am inclined to drop the further proceedings, giving the offier a clear warning that such serious laches on his side in future will not be tolerated and will be sternly dealt with. 10. In the light of the above findings, the impugned order in this case dated 20/5/2016 in MC No.-1224/2016 cannot be considered as an order passed in continuation of the proceedings in M.24608/2014 from which the Cr.R.P.No.696/2015 arose. The impugned order is liable to be set aside. Hence, the impugned order is set aside. The CRL.R.P.Nos.703/2016 & others 8 learned SDM may proceed on the basis of a complaint dated 4/4/2016 submitted by teachers of the school independently unconnected with the proceedings arising in Crl.R.P.No.696/2015. 11. In the light of the above, Cr.R.P.Nos.870/2016 and 703/2016 are allowed and the impugned order is set aside. C.O.C.No.725/2016 is closed with the observation made as above. Consequently, the parties will be relegated to the position where they stood as on the date of remand order dated 13/1/2016 in Cr.R.P.No.696/2015. The learned SDM shall consider the direction contained in the above revision and shall proceed forward in accordance with law and pass fresh orders as directed therein. 12. Since it is submitted that the impugned order dated 20/5/2016 was stayed by this Court and that the position has been restored back as it stood after the order in Crl.R.P.No.696/2015, that arrangement will continue till fresh orders are passed by the learned SDM. The learned SDM shall dispose of the entire proceedings within a period of three months from the date of receipt of this order. Both sides shall appear before learned SDM on 7//10/2016 at 11 a.m. In the eventuality of any unexpected delay in completing the CRL.R.P.Nos.703/2016 & others 9 proceedings, he shall seek necessary extension in advance. **Sd/-** **SUNIL THOMAS Judge** dpk /true copy/ PS to Judge.