Rajeev v. State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 13[TH] DAY OF JANUARY 2023 / 23RD POUSHA, 1944 ``` ## **`CRL.REV.PET NO. 528 OF 2020`** ``` AGAINST THE ORDER IN MC NO.7563/2019 DISPOSED BY THE SUB DIVISIONAL MAGISTRATE, NEDUMANGAD DATED 19.06.2020 ``` ## **`REVISION PETITIONER/COUNTER PETITIONER:`** ``` RAJEEV AGED 54 YEARS S/O. NARAYANA PILLAI, RESIDING AT KIZHAKKUMKARA VEEDU, KAITHAKUZHI, SASTHAMKAVU, VITHURA P.O. THOLIKKODE VILLAGE, THIRUVANANTHAPURAM DISTRICT. BY ADVS. S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY SRI.K.ANAND (A-1921) ``` ## **`RESPONDENTS/STATE & COMPLAINANTS:`** ``` 1STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PIN - 682 031. 2SHANAN KARUNAN, W/O. KARUNAN, ANANTHAPURAI, SASTHAMKAVU, VITHURA P.O. THOLIKKODE VILLAGE, THIRUVANANTHAPURAM DISTRICT. PIN - 695 551. 3R. SOMAN, S/O. RAMAN, SWATHI BHAVAN, SASTHAMKAVU, VITHURA P.O. THOLIKKODE VILLAGE, THIRUVANANTHAPURAM DISTRICT. PIN - 69551. 4BHUVANACHANDRAN .G., ARATHI BHAVAN, SASTHAMKAVU, VITHURA P.O. ``` ``` 2 ``` ## **`CRL.REV.PET NO. 528 OF 2020`** ``` THOLIKKODE VILLAGE, THIRUVANANTHAPURAM DISTRICT. PIN - 695 551. BY ADVS SMT. SEENA – PUBLIC PROSECUTOR SRI.A.S.SHAMMY RAJ – FOR R2 TO R4 ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 13.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.REV.PET NO. 528 OF 2020 ``` ``` 3 ``` ## **`JUDGMENT`** The petitioner, is the counter petitioner in MC No.7563/2019 before the Sub Divisional Magistrate, Nedumangad. The aforesaid proceeding was initiated by the Sub Divisional Magistrate under Section 133 read with Section 138 of Cr.PC, on the basis of a complaint submitted by respondents 2 to 4 herein. The facts which led to the filing of this revision petition are as follows. 2. The petitioner is the owner in possession in the enjoyment of landed property admeasuring 14 Ares and 17 sqm in re-survey No.318/12-1 and 2 Ares and 2 sqm in re-survey No.318/1-2 of Tholikkode Village, Nedumangad Taluk. Respondents 2 to 4 are the neighbours residing on the southern side of the said property. Respondents 2 to 4 filed a complaint before the Sub Divisional Magistrate invoking the jurisdiction under Section 133 Cr.PC, contending that the petitioner herein had excavated his property by removing soil up to a depth of 7.5 meters, and therefore the lateral support of the property of the respondents is in danger. Therefore, after calling for a report from the Tahsildar, the Sub Divisional Magistrate passed a preliminary order under section 133 Cr.PC, requiring the ``` 4 ``` ## **`CRL.REV.PET NO. 528 OF 2020`** petitioner herein to restore the lateral support. Upon being served with a copy of the preliminary order, an objection has been submitted by the petitioner herein before the Sub Divisional Magistrate wherein it was contended that the matter involved is a private dispute and no public right is involved in the case. Therefore, the jurisdiction of the Sub Divisional Magistrate under the provisions of Cr.PC was challenged. In the objection, it is also stated that the petitioner has already approached the Civil Court for the resolution of the dispute and therefore, no interference by the Sub Divisional Magistrate could be made by exercising the powers. After considering the objections and the reports furnished by the authorities concerned, as per the order dated 19.06.2020, the final order was passed under section 138 of Cr.PC confirming the preliminary order, in which the petitioner was directed to construct a retention wall along the boundary of the property of respondents 2 to 4 herein. The aforesaid order is under challenge in this Criminal Revision Petition. 3. Heard Sri. K.K.Dheerendrakrishnan, learned counsel appearing for the petitioner, Smt.Seena, learned Public Prosecutor for the State and Sri.A.S. Shammy Raj, learned counsel appearing for respondents 2 to 4. ``` 5 ``` ## **`CRL.REV.PET NO. 528 OF 2020`** 4. The learned counsel for the petitioner raised several contentions, including the factual disputes relating to the property. On the other hand, the learned counsel for respondents 2 to 4 opposes the said contentions. The learned counsel for the respondents also places reliance upon the averments made in the counter affidavit filed in response to the aforesaid revision petition. 5. Among the contentions raised by the petitioner, one crucial aspect is that, according to the learned counsel for the petitioner, the impugned order was passed by the Sub Divisional Magistrate without complying with the mandatory statutory requirement as contemplated under Section 138 of Cr.PC. It is pointed out that, as per the said provision, if the person against whom an order under section 133 Cr.PC is made, appears and show cause against the order, the Magistrate shall take evidence in the matter as in the case of a summons case. According to the learned counsel for the petitioner, even though the final order under Section 138 Cr.PC could have been passed only after taking evidence as contemplated under Section 138(1) of Cr.PC, no such procedure has been adopted by the Sub Divisional Magistrate in this case, and therefore, the ``` CRL.REV.PET NO. 528 OF 2020 ``` ``` 6 ``` entire proceedings are initiated. The learned counsel also places reliance upon the decisions rendered by this Court in **Jose V. Tharayil v. Revenue Divisional Officer, Fort Kochi and Another [2010 (2) KHC 217], Annakody v. State of Kerala and others [2015 (4) KHC 892] and Narayana Menon M. P. v. Sundaribhai K. [2016 (3) KHC 870].** 6. After considering all the relevant aspects, I am of the view that there is some force in the contention put forward by the learned counsel for the petitioner. It is true that in the order impugned in this case the Sub Divisional Magistrate referred to the depositions. The learned counsel for respondents 2 to 4 pointed out that, in the impugned order, it is observed by the Sub Divisional Magistrate that, during the course of the hearing, statements of the parties concerned were recorded. Since such a contention has been raised, I have perused the original records of the said case, which were called for the purpose of adjudication of this revision petition. On perusal of the same, it is seen that no evidence of any of the parties concerned was recorded, and what is referred to is only the minutes of the hearing, which took place on various dates of the proceedings. Thus it is evident that as rightly pointed out by the learned counsel for the petitioner ``` CRL.REV.PET NO. 528 OF 2020 ``` ``` 7 ``` and also held by this Court in the decisions referred above, the recording of evidence, as in the case of a summons case, is one of the mandatory requirements for passing a final order under Section 138 of Cr. PC. In the absence of recording evidence in the manner as contemplated above, the order would be nullity. Therefore, as evident from the records produced before me, no inquiry as contemplated under Section 138(1) of Cr.PC, after recording the evidence as in the case of a summons case has been conducted, the impugned order passed by the Sub Divisional Magistrate is to be interfered with. 7. Even though several other contentions were raised by the petitioner as well as respondents 2 to 4, I am not going into the same, as the order is being set aside on the ground that the same was passed without following the procedure contemplated under the statutory provisions of the said case. Accordingly, all the said contentions are left open. In the result, this revision petition is allowed, the order dated 19.06.2020 passed in MC No.7563/2019 by the Sub Divisional Magistrate, Nedumangad, is hereby set aside, and the matter is remitted ``` 8 ``` ## **`CRL.REV.PET NO. 528 OF 2020`** back for fresh disposal. It is directed that the Sub Divisional Magistrate shall re-consider all the contentions raised by the respective parties after taking evidence in the matter as in the case of a summons case by following the procedure contemplated under Chapter XX of Cr. PC. It is further ordered that such procedure shall be completed as expeditiously as possible, at any rate, within a period of six months from the date of production of a copy of this judgment. The original lower court file shall be returned to the Sub Divisional Magistrate, Nedumangad. ``` SD/- ZIYAD RAHMAN A.A. JUDGE ``` BR ``` 9 ``` ## **`CRL.REV.PET NO. 528 OF 2020`** ## **`APPENDIX OF CRL.REV.PET 528/2020`** ``` PETITIONER’S ANNEXURES ANNEXURE 1A TRUE COPY OF THE OBJECTION SUBMITTED BY THE PETITIONER. ANNEXURE IIA TRUE COPY OF THE PETITION SUBMITTED BY THE PETITIONER DATED 20.05.2020. ANNEXURE IIIA TRUE COPY OF THE PLAINT IN OS NO. 670/2019 PENDING ON THE FILE OF THE MUNSIFF COURT, NEDUMANGAD. ANNEXURE IVA TRUE COPY OF THE WRITTEN STATEMENT SUBMITTED BY THE RESPONDENTS 2 TO 4. ``` ``` RESPONDENT’S ANNEXURES: NIL ```