Krishnan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 23RD SEPTEMBER 2008 / 1ST ASWINA 1930 Crl.Rev.Pet.No. 1149 of 2008() ------------------------------ REVN. PETITIONER(S): RESPONDENT-C3-10348/07: --------------------------------------------------------- KRISHNAN, S/O. KANNAN, AGED 72 YEARS, RESIDING AT KANHIRAMULLATHIL, VATAKARA AMSOM, DESOM, POST VATAKARA-4, KOZHIKODE DISTRICT. BY ADV. SRI.B.KRISHNAN SRI.R.PARTHASARATHY RESPONDENT(S): STATE, PETITIONER: ----------------------------------------- 1. STATE OF KERALA - WITH ADDRESS FOR SERVICE, GOVERNMENT PLEADER, HIGH COURT OF KERALA, ERNAKULAM. 2. M.K. BALAN, MANDADIKUNIYIL HOUSE, VADAKARA AMSOM, DESOM, PAZHAMKAVU, ADAKKATHERU, VATAKARA-4, KOZHIKODE DISTRICT. BY PUBLIC PROSECUTOR SRI.P.RAVEENDRA BABU FOR R1 SRI.P.NARAYANAN FOR R2 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A.No.3393/2008 IN CRL.R.P.No.1149/2008 23.9.2008 DISMISSED Sd/- M.Sasidharan Nambiar Judge /true copy/ P.S to Judge ## **M.SASIDHARAN NAMBIAR,J.** =========================== Crl.R.P. NO. 1149 OF 2008 =========================== Dated this the 23rd day of September,2008 ## ORDER Whether Sub Divisional Magistrate is competent to pass an order making the conditional order passed under section 133absolute under section 138 of Code of Criminal Procedure, without complying with the procedure provided under section 137 and 138 of the Code of Criminal Procedure. This is the question to be decided in the revision. 2. On a complaint filed by second respondent and others Executive Magistrate, Vatakara passed a conditional order on 29.10.2007 directing petitioner herein to restore the public way to the temple allegedly obstructed by him or to appear and show cause why the order shall not be made absolute on 14.11.2007. Petitioner appeared before the Magistrate and filed Annexure-3 statement denying existence of a public way through his property and also contending that he did not cause any CRRP 1149/2008 2 obstruction. The impugned order was passed on 18.2.2008 making the conditional order absolute and directing Village Officer to restore the way on the failure of the petitioner to comply with the order within seven days from 18.2.2008 for the reason that though petitioner filed a statement that he did not cause obstruction, the obstruction subsists. The revision petition is filed under section 397 and 401 of Code of Criminal Procedure challenging that order. 3. Learned counsel appearing for petitioner and second respondent were heard. 4. Learned counsel appearing for petitioner pointed out that when a conditional order is passed under section 133, as provided under section 137 petitioner is entitled to appear before the Executive Magistrate and deny the public right and if so learned Magistrate is bound to proceed as provided under section 138 and a final order could be passed only after recording evidence as in a summons case and as the impugned order was passed CRRP 1149/2008 3 without complying with the mandatory provisions, order is to be quashed. Learned counsel relied on the decision of this court in **Surendran v. State of Kerala (1998 (2) KLT 958)** and submitted that the order is illegal. Learned counsel appearing for second respondent submitted that if the procedure was not complied with while passing the final order, Executive Magistrate may be directed to comply with the procedure and pass final order in accordance with law. 5. Section 133 of Code of Criminal Procedure enables District Magistrate or Sub Divisional Magistrate or any other Executive Magistrate specially empowered in that behalf to pass a conditional order on receiving report of a Police Officer or other information and on taking such evidence as he thinks fit, if he considers that any unlawful obstruction or nuisance was caused to any public place or any way or river or channel which may be lawfully used by the public. The CRRP 1149/2008 4 conditional order shall require the persons causing such obstruction or nuisance to remove such obstruction or nuisance or if he objects so to do to appear before the Magistrate and show cause why the order should not be made absolute. Section 135 of Code of Criminal Procedure provides that the person against whom such an order is made shall either perform within the time the act directed to be done thereunder or appear and show cause against the same. Section 137 of the Code provides that where an order is made under section 133 and the person against whom the order was made appears before the Magistrate, Magistrate shall question him whether he denies existence of the public right in respect of the way, river, channel or place and if he denies the public right Magistrate shall proceed to enquire as provided under section 138 of the Code. Section 138 provides that if the person against whom an order under section 133 is made appears and shows cause against the order, the Magistrate shall take CRRP 1149/2008 5 evidence in the matter as in a summons case. Under sub section(2) if the Magistrate is satisfied that the order, either as originally made or subject to such modification, is reasonable and proper, the order shall be made absolute with or without modification.Therefore when a conditional order is passed under section 133 and petitioner appeared before the Magistrate and denied existence of the public right as is clear from the statement, a final order as provided under sub section (2) of Section 138 could be passed only after recording the evidence as in a summons case and considering the evidence and that too recording the reasons for making the order absolute. 6. The impugned order does not show that Executive Magistrate has complied with any of the mandatory provisions. The impugned order only shows that petitioner has stated that he did not cause any obstruction and still the obstruction subsists and therefore the order is made absolute. The order is clearly illegal and is to be set CRRP 1149/2008 6 aside. Criminal Revision Petition is allowed. Order dated 18.2.2008 is set aside. Executive Magistrate is directed to conduct an enquiry as provided under section 138 of Code of Criminal Procedure, by recording evidence as in summons case and pass final order under sub section (2) of Section 138 of Code of Criminal Procedure in accordance with law. M.SASIDHARAN NAMBIAR JUDGE tpl/- ## M.SASIDHARAN NAMBIAR, J. --------------------W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006